EXHIBIT 13 - Free Joe Giarratano

EXHIBIT 13
i
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I'd Rather Teach Peace
Colman McCarthy
O R B I S#^ g p ' B a O K S
Maryknoll, New York 10545
Eirhlh Printing. May 20(17
Founded in 1970, Orbis. Books '.-ndeavors to publish works that
enlighten the mind, nourish th-.- spirit, and challenge the conscience.
The publishing arm of the Maryknoll Fathers & Brothers, Orbis
seeks to explore the global dimensions of the Christian faith and
mission, to invite dialogue with diverse cultures and religious traditions, and to serve the cause of reconciliation and peace. The
books published reflect the views of their authors and do not represent the official position of the Maryknoll Society. To learn more
about Maryknoll and Orbis Books, please visit our website at
www.maryknoll.org.
Copyright O 2002 by Colman McCarthy.
Published by Orbis Books. Maryknoll, NY 10545-0308.
All rights reserved.
No part of this publication may be reproduced or transmitted in any
form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system,
without prior permission in writing from the publisher.
Queries regarding rights and permissions should be addressed to:
Orbis Books, P.O. Box 308, Maryknoll. NY 10545-0308.
Manufactured in the United States of America.
Manuscript editing and typesetting by Joan Weber Laflamme.
Library of Congress Cataloging-in-Publication Data
McCarthy. Colman.
I'd rather teach peace / Colman McCarthy.
p. cm.
ISBN 1-57075-430-6 (cloth)
I. Peace—Study and teaching—Washington Metropolitan Area. I. Title.
JZ5534 .M33 2002
SOS.e'o—dc21
2002000624
•*#»!**•'
106
Pov.tK W I I H . Nor P(..'.LR Oven
DfcCLMBliK
access to all the facilities here. However, I will do all I
can to get U\e ball rolling from here. The violence leuel
in this system has been rising fast in the past thiee tu
tour years. This is due to the increase of the younger
gang offendcis. This has caused an epidemic of racial
separation and tensions. That wasn 't really an issue
here in past years. And the system here is responding
by building more and more control units and twisting
the thumbsciews. I personally use my time to work on
self-realization. And as a natural result, the more I
realize self, the more I sympathize with the problems
and hardships of those around me. So I feel a personal
responsibility lo do all I can.
In the summer of 1997 I visited Joe in the Joliet prison, an
aging operation in the center of the small city—named after
Pere Joliet, an eighteenth-century Jesuit missionary—an hour
south of Chicago His spirit was strong. He planned to try to
ge( a peace studies course started with the help of a prison
chaplain who was sympathetic to the idea.
Nothing came of it. Gianatano's effoi ts were seen as agi
tation. Illinois called Virginia and said to come take him back.
For (he past four years Giarratano has been caged in an 8'
x 11' isolation cell in the Red Onion state prison in Pound,
Virginia. Red Onion, in rural southwest Virginia, a seven-hour
drive from Washington, is a supermax facility where inhumane treatment of prisoners is common. 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
program, and no
states: "Copies or
letteis, materials
no law library, no meaningful job-training
significant education classes. A directive
sections of publications, brochures, newsprinted off the Internet, or other printed
107
materials will no longer be allowed or enclosed in incoming
correspondence."
For exercise, Giarratano is allowed to move around in a
walled concrete area the size of a dog pen. In a letter to me
he wrote: "I am strip searched each time 1 leave the eel! for
recreation. 1 am first handcuffed behind the back, legs shackled, placed on a metal dog 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. In early 2000
Giarratano was confined to his cell twenty-four hours a day,
except for three five-minute showers a week. His offense?
He retained a mustache, a major violation of the Department
of Correction's hair-grooming regulations.
In one of his regular letters—this one on May 7, 2000—
Giarratano described his feelings about life at Red Onion:
Generally. I am holding up well under trie- 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 longterm Isolated segregated lockdowns—my years on the
row—the tremendous amount of mental concentration
it requires just to keep one's head above water. There
are times, eoen now, when I'm not so sure of my own
grip on reality. The social Isolation, greatly restricted
environmental and intellectual stimulation, forced
idleness, constant confinement to a 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 d human being—the total lack of
personal prioacy, the tight bulb on 24 hours a day and
Iwiny under the constant threat of officially sanctioned
violence will. I snp/x.'se, take its toll on anyone. More
108
DF.IEMBI.K
and more, I find myself having to turn in ward just to
maintain my balance in this madness. Even then, I
must remain on guard against ha/iucinations, feelings
of suffocation, paranoia, fear, and even rage.
In the same letter Giarratano included an excerpt from an
1890 Supreme Court decision involving the sensory-deprivation isolation of inmates in locked-down cells: "A considerable number of prisoners fell, after even a short time in
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 two hundred
friends who gathered at a Doubletree hotel dinner in
Charlottesville, Virginia, to honor Giarratano's heroic resistance against the state's courts and the correction department's efforts to crush his spirits.
The dinner was on May 1, the same day that the mayor of
Charlottesville, in a move that no one could recall ever happening anywhere involving a prisoner, declared May 1 Joseph Giarratano Day. The proclamation was meant to pay
homage to a man that many Virginians—on both sides of the
death-penalty issue—believe is innocent. Among those
speaking at the dinner was Judge Robert Merhige, now retired. In a fifteen-minute speech he aligned himself with all
those in the audience who continued to work to win
Giarratano's freedom. Merhige condemned the twenty-oneday rule.
in late February 2000 the Virginia House of Delegates voted
73-25 on a bill that would end the twenty-one-day rule. The
forty-two Democrats and thirty-two Republicans supporting
POWER WITH, NOT P« w t n OVER
109
the change believed that, finally, Virginia would no longer be
the only one of the nation's thirty eight death-penalty states
denying appellate relief for possibly innocent people. Two
weeks later the state Senate, lobbied loudly by prosecutors,
refused to consider the bill.
Every fall semester at Georgetown Law and my other
schools I have my classes read about and discuss the life
and thoughts of Joe Giarratano. At Georgetown many students have written their required six-thousand-word papers
on his case. Kathleen Phelps began her paper by recalling
her initial jolts of fright at the Craigsville prison. Students
were passed through security five at a time and led, five by
five, into the main reception room filled with prisoners:
Suddenly we were the. strangers. Several of the men
welcomed us warmly. I glanced at my friend Susan
and could tell that she had the same thoughts I did:
"These are mass murderers. Drug dealers. Rapists. My
God, they are so friendly and so unashamed." At this
thought, I became ashamed. I was so auspicious,
looking into each inmate's face as if I could read there
of his crime. As the evening wore on, I got up the
courage, to talk to several men. I wanted to hear what
they had to say. I wondered about liuing behind walls.
At one of the graduations Joe Giarratano rose to give a
brief welcoming speech. "In spite of our confinement and the
violence that surrounds us, we have come to know that we
are not helpless. Just as we have contributed to the problem, we just as easily can contribute to the solutions. We all
have a role to play in reducing violence."
One of those roles has been taken by Amy Harfeld. In
1989 she was a senior in my class at Bethesda-Chevy Chase
High. Outside of keeping track of her credit cards—she was a
champion shopper and wore elegant clothes and jewelry to
prove it—and finding a daily parking space at school, she
wasn't overburdened with worries, especially not her studies.
110
Dfi-EABtK
So far, she was getting by on her smile. Her life in the bowl of
Chevy Chase was full of cherries. In 1989 she came on the
field trip to Mecklenburg. While talking to some of the men
on death row, she learned that many had no lawyers for the
appeals process. The daughter of a lawyer, one who became
an administrative law judge in Washington, A m y wondered
about the fairness of that. She learned, too, that many of the
men were illiterate or semi-illiterate, which was why they held
Joe Giarratano in high regard.
In the months following the visit to the prison. Amy had
less and less interest in the malls. She began reading the
papers for stories about the justice system. In class she moved
from the back row to the front. She threw herself into the
debates. The next yeai she was at the University of Michigan, taking classes in government, sociology, and women's
studies. She became a campus organizer for a gender-equality
program. She graduated summa cum laude. Motivated, she
joined Teach foi America and served in a middle school in a
Hispanic neighborhood in Pasadena, California. She decided
to go to law school. I tried persuading her to come to
Georgetown. She applied and was easily accepted, as she
was at several other high-ranked schools. One of the risks of
going to a prestigious law school is ending up at a prestigious law firm. A m y chose the law school at the City University of New Ybik, known for social activism. Few Wall Street
or K Street firms set up booths there on Career Day. Amy is
now a public-interest lawyer in an impoverished New York
City neighborhood. She continues to stay in touch with Joe
Giarratano."
On February 12, 2001, Earl Washington was released from
prison. DMA evidence exonerated him. Members of Congress invited him to the Capitol to speak, but Virginia prison officials decreed he could not leave the state. He has six months of parole to
serve on an unrelated assault conviction. None of the national news
stories about Washington's release from prison mention the lifesaving role playecf by Joe Giarratano. Days befoi^ Washington's
release, the Virginia legislature moves closer to passing a bill to
PovfM Wnn, Noi P- v.rR O u r
1 1 \
T h e Washington Center
Tom Cruickshank, a senior a l Franklin Pierce College in
southern New Hampshire, began the semester with a dream
internship. Or so he thought. It was the White House. Before
his first day Tom's imagination slipped its harness. There
he'd be, he pictured, sitting in on policy meetings with the
president and the cabinet, taking notes for the position papers he'd be writing for the senior staff, phoning around the
country to the offices of governors and mayors to keep the
heartland abreast, and writing letters on White House stationery to the folks at home. He'd like to see their faces when
the postman brings a letter with "The White House" printed
in dark blue on the upper left of the envelope. Just "The
White House." No street address. No zip. Total class.
Tom's M o m and Dad in Farmingdale, Long Island, were
indeed wildly impressed when the first letter came, bragging
to the relatives that—Wow!—their boy had risen to the top.
But after a week at the White House, Tom had discovered his
true station in life: errand boy, photocopier operator, the one
who ordered pizza late into the night, phone message taker
for more self-important papercrats and bureaucrats than he
could count. Worse, he was not in the White House at all but
in a third-floor back room of the Old Executive Office Building. Worse still, he had to listen to his friends who had internships at obscure NGOs gasp when he mentioned the White
House and pretend that he had lucked out with the ultimate
glamour job.
amend the twenty one-day rule. But it will do nothing to help
Giarratano, Bassette, or Payne. The M-iish/nud m Foil reported on February 9, 2001: "Only prisoners who have new biological evidence
would be eligible to go back to court New witnesses, fingerprints,
ballistic tests and anything unrelated to DNA or blood are excluded
from the legislation
A Death Penalty Information Center study shows
that DNA tests have freed just 10 of the 93 men released from death
row nationwide since 1973- The others relied on other evidence."
EXHIBIT 14
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100 Yale L.J. 1005, *
Copyright © 1991 Yale Law Journal Company.
Yale Law Journal
January, 1991
100 Yale L.J. 1005
LENGTH: 3412 words
ESSAY: "To the Best of Our Knowledge, We Have Never Been Wrong": Fallibility vs. Finality in
Capital Punishment.
NAME: Joseph M. Giarratano [ + ]
BIO:
[ + ] Mr. Giarratano is currently on Death Row in Virginia, where he serves as a client advisor
for the Virginia Coalition on Jails and Prisons and as a member of the advisory board of the
Peace Center, Washington, D.C. His fight to avoid electrocution has attracted the support of
advocates as diverse as columnist James J. Kilpatrick and Amnesty International, many of
whom argue that there is serious doubt as to Mr. Giarratano's guilt. Mr. Giarratano has also
attracted significant attention due to the innovative legal scholarship he has brought to his
involvement In right-to-counsel and other death penalty related litigation, and to the articles
he has published on Death Row issues. At the time this issue of The Yale Law Journal went to
the printer, Mr. Giarratano's execution date had been set for February 22, 1991, and it was
not known whether Governor L. Douglas Wilder would grant Mr. Giarratano's request for a
conditional pardon and a new trial. -- Ed.
SUMMARY:
... Thirty-six states currently practice capital punishment. ... In our passion for the death
penalty, we are losing our respect for the appellate process as a safeguard against
miscarriages of justice. ... The inescapable risk of executing even one Innocent individual
should be reason enough to abolish capital punishment. ... Furthermore, even under today's
allegedly "reliable" capital punishment statutes, many innocent individuals have been
sentenced to death. ... His death sentence was subsequently overturned because of the
unconstitutionality of the capital punishment statute then in use by Texas. ... After
Richardson came within hours of being executed, his death sentence was commuted to life
imprisonment by the decision in Furman v. Georgia. ... The evidence being all too clear that
our nation has, unfortunately, not undergone a new birth of infallibility, that we have not
outgrown our need for full dual collateral review, we must now turn to the only other possible
argument for compromising the traditions associated with the "Great Writ": the fear that we
cannot afford freedom, the fear that crime has become such a threat that the only alternative
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to compromising our constitutional rights is surrendering to anarchy. ...
HIGHLIGHT: Till the infallibility of human judgments shall have been proved to me, I shall
demand the abolition of the death penalty.
Marquis de Lafayette *•
TEXT:
[*1005] Thirty-six states currently practice capital punishment. 2 Approximately 2400
Americans now await death at the hands of their government. 3 Since the reinstatement of
capital punishment in the late 1970's, at least 140 convicted criminals have been
exterminated. 4 Yet many of us remain filled with doubt regarding the constitutionality,
fairness, and morality of the death penalty. One point alone commands unanimous consent:
for the state, operating under "color of law," to take the life of an innocent individual would
be a horrendous event, a perversion of the cause of justice.
On the average, eight years elapse between conviction and the infliction of the ultimate
penalty. s In recent times, with violent crime a steadily increasing [*1006] concern, there
has been a deafening clamor for more and speedier executions. Whether this agitation
originates from anger, frustration, or fear, it has certainly been heeded by our elected
leaders and the judiciary. Our national debate no longer centers on whether the state has the
right to take life, or whether it would be wise to do so even if it had the right. Instead, the
focus of our attention has shifted to whether the right to appeal capital convictions should be
substantially curtailed.
With the approval ~ indeed, the urging — of Chief Justice William H. Rehnquist, « the
Supreme Court has discovered ways to drastically limit or eliminate Death Row appeals. In
recent decisions, the Court has arbitrarily narrowed the grounds on which the condemned
can appeal 7 and severely limited the plaintiffs who can pursue such appeals. 8 Obdurate
rules of procedure are being stringently enforced to bar judicial review of obvious errors. 9
Congress has also entered into the debate. Recently, the Senate approved an "anti-crime" bill
which includes provisions that drastically shorten the federal appeals process following death
penalty convictions.10
There is a frightening aspect to this call for quicker executions. In our passion for the death
penalty, we are losing our respect for the appellate process as a safeguard against
miscarriages of justice. Lost in a wave of heated rhetoric and emotionalism, we have learned
to view appeals as a "delaying" tactic employed by "criminals" or their (nearly as culpable,
according to some) attorneys to thwart otherwise final judgments. The right to appeal now
appears merely to be the right to erect unnecessary obstacles to justice. Fundamental
fairness is no longer anywhere near the top of our list of concerns. We bear down on the
offender to the exclusion of all else; the only demand that seems worthy of respect and
attention is our frustrated cry for finality.
Our system of criminal justice is far from perfect. Yet, imperfections notwithstanding, it is a
system of which we can be proud, provided we recognize and maintain a realistic sense of
our own fallible nature. Our system of state and federal collateral review of criminal
convictions represents one of our nation's most innovative contributions to the human race's
experiments in the structures of criminal justice.
[*1007] If some feel it has become necessary to dismantle it, surely the burden is on them
to show that they are not grasping for irrational remedies out of mere frustration with current
social problems. Surely these would-be dismantlers of dual collateral review are obliged to
substantiate their claim that our nation has reached such a peak of political and ethical
maturity as to no longer to require such safeguards, or, alternatively, that our country has
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plunged so deeply into the abyss of social chaos that the benefits offered by such safeguards
are now outweighed by their drawbacks. The simple unexamined belief that some convicted
murderers are circumventing the laws of thirty-six states is not a sufficient basis to undercut
the process whereby we protect ourselves from wrongful criminal judgments, If we must
have a death penalty, as a majority seem to think we must, then we cannot let our anger
blind us to our own fallibility.
The Bill of Rights gives us the framework of our fundamental rights in criminal cases. The
"Great Writ" of habeas corpus, guaranteed under all but the most extreme circumstances by
the explicit command of the Constitution, l l has been the method by which previous
generations of Americans have sometimes succeeded in vindicating the guarantees of the Bid
of Rights. When we cut back on the Great Writ or "the eternal and unremitting force of the
habeas corpus laws" 12 and deny selected individuals access to the federal courts, it is
tantamount to a declaration that we have lost faith in our ancestors and rejected our
inheritance, that we now consider the Bill of Rights an impractical and Utopian dream.
It is true, as retired Associate Justice Lewis F, Powell l 3 and others have argued, that the
delay occasioned by Death Row appeals does inconvenience the enforcement of state court
criminal judgments. But one would be hard put to argue that such delays totally foreclose the
enforcement of such criminal judgments as are finally determined to be valid. (Many capital
convictions are later shown to have been invalid, sometime for procedural reasons, and
sometimes for the simple reason that the person convicted did not, in fact, commit the crime.
14
) To the extent we have become convinced, despite the ambiguous nature of currently
available evidence, 15 that the death penalty carries more deterrent punch than any
constitutional alternative punishment, we may worry that prolonging the appellate process
may lose us this edge in deterrence. There are, however, much less objectionable ways to
lessen the time taken up by [ * 1 0 0 8 ] appeals. We could, for example, provide highly
qualified, government-subsidized counsel from the initial trial stage on through state and
federal direct and collateral appeals. We could also ease the congestion in our courts by
providing more judges to handle the ever-increasing tide of litigants, civil and criminal.
Anyone attempting to "reform" our system of safeguards must bear in mind the hard
historical fact that the Bill of Rights has no power to protect itself. The arguments put forth
by those who want to speed up the pace of executions for the sake of finality are scarcely
new. The inconvenience they complain of was recognized by Jefferson at the dawn of our
Republic:
But tho [sic] [a bill of rights] is not absolutely efficacious under all circumstances, it is of
great potency always, and rarely inefficacious. . . . There is a remarkeable [sic] difference
between the characters of the Inconveniencies [sic] which attend a Declaration of rights, and
those which attend the want of it. The inconveniences of the Declaration are that it may
cramp government in it's [sic] useful exertions. But the evil of this is shortlived, moderate. . .
. The inconveniencies [sic] of the want of a Declaration are permanent, afflicting and
irreparable: they are in constant progression from bad to worse. . . . 1S
When we substantively foreclose any class of citizens from meaningful access to the Great
Writ ~ even such a despised class as condemned prisoners -- we are not only circumventing
the original intent of the Bill of Rights, but practicing precisely the sort of discrimination that
democratic government was instituted to prevent. Both of these aberrations, no matter how
well intended, mock the very essence of justice enshrined in the Constitution entrusted to us
by our Founders.
Has our criminal justice system become so infallible as to rule out the possibility of serious
error? Have we outgrown the need for our traditional constitutional safeguards? Or is it
possible that some of those we seek to execute are, in fact, innocent? "Can it happen? It has
happened!" 17 At least twenty-three people are now believed to have been wrongfully
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executed in this country since the turn of the century. l 8 History provides hundreds of
examples — many of them extremely recent — of capital convictions tainted by serious
factual errors. No careful student of the reality (as opposed to the theory) of capital
punishment can cling for long to the notion that ours is an infallible system. On the contrary,
we are admittedly fallible people struggling to approximate infallible judgments. As one noted
capital punishment supporter has [ * 1 0 0 9 ] phrased it, "To say that someone deserves to
be executed is to make a godlike judgment with no assurance that it can be made with
anything resembling godlike perspicacity." l 9
The inescapable risk of executing even one innocent individual should be reason enough to
abolish capital punishment. To those who have persuaded themselves that our current
procedures greatly minimize the risk of executing the innocent and who dismiss the
remaining risk in this area as negligible, I offer the following evidence.
Just last year, four Supreme Court justices flatly stated that there remains "a high incidence
of uncorrected error" in capital cases. 20 Even Justice Kennedy, who concurred in the
opposing opinion in the case in question, recognized that "a substantial proportion of these
prisoners succeed in having their death sentences vacated in habeas corpus proceedings." 2 1
Furthermore, even under today's allegedly "reliable" capital punishment statutes, many
Innocent individuals have been sentenced to death. A wide variety of factors have been
responsible for such miscarriages of justice. These factors include, but are not limited to:
misleading circumstantial evidence, suppression of exculpatory evidence, coerced or
otherwise untrustworthy or false confessions, perjury by prosecution witnesses, incompetent
defense counsel, mistaken eyewitness identification, and convictions largely motivated by
community outrage. 2a
The incidence of wrongful conviction and sentencing of innocent individuals shows no sign of
decreasing. During 1987, 1988, and 1989, at least a dozen men who had been sentenced to
death were released as innocent. 23 Consider the following three cases:
(1) Joseph Green Brown, after spending fourteen years on Florida's Death Row (at one point,
he was within fifteen hours of being executed), was released from prison as innocent. It had
come to light that the prosecution knowingly relied on false testimony to obtain the
conviction. M
(2) In 1977, Randall Adams was convicted and sentenced to death for the murder of a Dallas
police officer. His death sentence was subsequently overturned because of the
unconstitutionality of the capital punishment statute then in use by Texas. In 1989, Adams'
conviction itself was set aside after it was learned, among numerous other things, that the
prosecution had prompted an alleged eyewitness to identify Adams in a line-up after the
witness had initially [ * 1 0 1 0 ] Identified another man. Having spent twelve years in prison
for a crime he did not commit, Mr. Adams was released. 2S
(3) James Richardson was released in 1989 after spending twenty-one years in a Florida
prison. Richardson was convicted of poisoning his six children in 1968 and was sentenced to
death. After Richardson came within hours of being executed, his death sentence was
commuted to life imprisonment by the decision in Furman v. Georgia. 26 Luckily for
Richardson, volunteer counsel eventually succeeded in unearthing some crucial evidence. In
1989, his conviction was overturned based on judicial findings of prosecutorial misconduct
and perjured testimony. "
But for the delay occasioned by the appellate process, these men would have been executed
long before their innocence was discovered. This has been true in virtually every case in
which the innocence of Death Row prisoners has been established. Many other examples
could be cited to prove that, regardless of what some would like to believe, the factual
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findings underlying our assignments of capital punishment remain stubbornly unreliable. The
imposition of this ultimate sanction continues to require all the safeguards built into our
government two centuries ago.
Our system remains so unreliable that innocence is often discovered either through totally
fortuitous circumstances or when volunteer attorneys step in to reopen investigation, long
after the state has declared its findings to be final. Take, for example, the case of Larry
Hacker, who was convicted of robbery and murder in Georgia, and sentenced to death.
Bobby Lee Cook, Hacker's attorney, believed him innocent. After the conviction and sentence
had been affirmed at all levels of appeal, Cook's investigation was finally able to uncover
evidence proving that the prosecution's star witness had been lying on the stand. Hacker was
released after a federal judge found that Hacker had been framed. 2a Cook now opposes
capital punishment because, as he succintly puts it, "It's just too damn final." 29
The evidence being all too clear that our nation has, unfortunately, not undergone a new
birth of infallibility, that we have not outgrown our need for full dual collateral review, we
must now turn to the only other possible argument for compromising the traditions
associated with the "Great Writ": the fear that we cannot afford freedom, the fear that crime
has become such a threat that the only alternative to compromising our constitutional rights
is surrendering to anarchy.
[ * 1 0 1 1 ] We Americans have heard this threat in every generation since the Revolution.
There always seems to be some sort of temporary emergency going on for the duration of
which, we are told, our liberty must be limited or suspended. At many times during our
history, seldom to our credit, we have believed those making this threat, and have
compromised our constitutional inheritance. 30 At other times, however, we have remained
unconvinced that social stability can be achieved only by compromising individual rights. 3 1
We have, instead, relied on the theory that a government that refuses to compromise on
individual rights will, in the long run, achieve stability by commanding the voluntary
allegiance of its citizens. When threatened with civil disorder, instead of attempting to
overcome the limits the Constitution places on us, we have tried to work within the
Constitution to overcome the causal factors pushing our nation toward disunity. This latter
approach is the one we need today.
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional Law > Bill of Riahts > General Overview ^
Criminal Law & Procedure > Eyewitness Identification > General Overview ^Sl
Criminal Law & Procedure > Sentencing > Capital Punishment > Stays of Execution C l
FOOTNOTES:
T n l Burleigh, Confession Not Always To Be Trusted, in VOICES AGAINST DEATH 97-98 (P.
Mackey ed. 1976) (citing C. LUCAS, 2 RECUEIL DES DEBATS DES ASSEMBLEES LEGISLATIVE
DE LA FRANCE SUR LA QUESTION DE LA PEINE DE MORT, pt. 2, at 42 (1831)).
• n2 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, DEATH ROW, U.S.A. 1 (quarterly
update, Sept. 2 1 , 1990). The federal government and military practice capital punishment as
well. Id.
+n3 Id.
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Page 6 of 7
• n 4 Id.
"?n5 Powell, Capital Punishment, 102 HARV, L REV. 1035, 1038 n.2.2 (.1989) (citing E.
CARNES & S. STEWART, SUMMARY OF POST-FURMAN CAPITAL PUNISHMENT DATA § II
(1988) (unpublished report by the Alabama Assistant Attorneys General, available in Harvard Law School Library)).
"+n6 See Marcotte, Rehnquist: Cut Jurisdiction, A.B.A.J., Apr. 1989, at 22-23 (quoting
Rehnquist, C.J.: "[T]o my mind, the flaw in the present system is . . . that litigation
ultimately resolved in favor of the state literally takes years and years and years.").
+n7 See, e.g., Teague v. Lane, 489 U.S. 288 (1989) (new, less strict rule, governing
evidence required for prima facie case of racial discrimination in use of peremptory
challenges held not to have retroactive effect).
+n8 See, e.g., W.hitmore y. Arkansas, 110 S. Ct. 1717 (1990) (second Death Row inmate
lacks standing to challenge validity of death sentence when defendant has waived right to
appeal).
*?n9 See generally Butler v. McKeilar, 110 S. Ct. 1212 (1990) (new Fifth Amendment-based
rule, barring police-initiated interrogations, held not to have retroactive effect); Saffie v.
Parks, 110 S. Ct. 1257 (1990") (new Eighth Amendment-based rule, barring jury instructions
against sympathy for defendant, held not to have retroactive effect); Wainwrlqht v. Sykes f
433 U.S. 72 (1977) (failure to make timely objection to admission of inculpatory statements
to police bars subsequent federal review).
• n l O See S. 1970, 101st Cong., 1st Sess. § 2256-62 (1989).
^ n l l U.S. CONST, art. I, § 9.
~ n l 2 M. PETERSON, THE PORTABLE THOMAS JEFFERSON 429 (1986) (citing letter from
Thomas Jefferson to James Madison (Dec. 2 0 , 1 7 8 7 ) ) .
• n l 3 See Remarks of Lewis F. Powell, Jr., Associate Justice, Supreme Court of the United
States, Eleventh Circuit Judicial Conference, Savannah, Georgia (May 8-10, 1983).
? n l 4 See Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L.
REV. 2 1 . 56-64 (1987).
V n l S See generally W. BOWERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN AMERICA,
1864-1982, AT 271-336 (1984) (the death penalty may actually provoke more homicides
than it prevents); THE DEATH PENALTY IN AMERICA 93-180 (H. Bedau ed. 1982) (reality of
deterrence is doubtful).
+N16 M. PETERSON, supra note 12, at 439 (citing letter from Thomas Jefferson to James
Madison (Mar. 15, 1789)) (emphasis added).
"?nl7 M. MUSMANNO, IS IT POSSIBLE TO EXECUTE INNOCENT MEN? 1 (1940) (referring to
execution of Sacco and Vanzetti) (emphases added). Musmanno's pamphlet was published by
the American League to Abolish Capital Punishment.
• n l 8 See Bedau & Radelet, supra note 14, at 72-75.
? n l 9 W. BERNS, FOR CAPITAL PUNISHMENT: CRIME AND THE MORALITY OF THE DEATH
PENALTY 178 (1979).
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Page 7 of 7
• n 2 0 Murray v. Giarratano, 109 S. Ct, 2765, 2778 (1989) (Stevens, J., dissenting).
"?n21 Id. at 2772 (Kennedy, J., concurring),
* n 2 2 See Bedau & Radelet, supra note 14, at 56-64.
• n 2 3 See Tabak & Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of
the Death Penalty, 23 LOY. L. REV. 59, 102 (1989).
"?n24 See Siegel, Sentencing the Wrong Man to Die, L.A. Times, May 10, 1987, § 1, at 1, col.
1.
+"n25 See Fricker, Crime and Punishment in Dallas, A.B.A. J., July 1989, at 52, 54;
Applebome, A Murder in Texas: 12 Years Later, Questions Linger About Justice System, N.Y.
Times, Oct. 3 1 , 1988, at A13, col. 4.
? n 2 6 408 U,S^..2.38_I19721i
"Pn27 See Malcolm, Tainted Verdicts Resurrect Specter of Executing the Innocent, N.Y.
Times, May 3, 1989, at A18, col. 1; 21-Year Ordeal Ends in Release, N.Y. Times, Apr. 27,
1989, at A16, col. 6.
? n 2 8 See Curriden, Bobby Lee Cook: Georgia Maverick, A.B.A. J., Mar. 1989, at 68, 71-72.
T n 2 9 Id. at 72.
T n 3 0 See, e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding "exclusion" of
U.S. citizens of Japanese ancestry from areas on West Coast).
Tn31 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (statements elicited under custodial
interrogation inadmissible unless suspect either clearly and intelligently waived rights, or was
notified (1) of right to remain silent, (2) that statements made might be used as evidence
against him, and (3) of right to have attorney present, either retained or appointed).
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EXHIBIT 15
e
\>V
Reflections on Our Constitution
By Joe Giarratano
"Government cannot stand not to be in control, and the
minions of government—judges—still do the decision
making. Thus 1 am subject to the passions and weaknesses
of those who may be lackeys to tyranny or fearful of their
own lives or possessions or status, even when, especially
when (as today) tyranny is masked as participatory liberal
capitalism. I would prefer to make my arguments to thatother, even more democratic legal institutions. ..a jury of
my peers."
- Wythe Holt, Professor of Law
Preface
Recently, during a talk given at a law school, US Supreme Court Justice Antonin
Scalia commented that those who contend that the Constitution is a living, breathing
document are wrong. Justice Scalia, who refers to himself as an "originalist", went on to
state, "the Constitution is not an organism. It is a legal document", he added further, that
until about 50 years ago, more judges and legal scholars shared his belief that what the
Constitution means "is what it was understood to mean when it was adopted." The
learned Justice also complained that confirmation hearings for appointees to the highest
court amount to "one issue after another on what the Bill of Rights ought to be."
The reflections that follow are not necessarily original, i.e., they are as old as the
very Constitution Justice Scalia speaks of; and, they are presented—not so much to rebut
the Justice—as an effort to get a new generation engaged in one of the most practical and
important philosophical activities of our time: i.e., to think about what a just society and
just government ought to be.
Constitutional rule places heavy burdens upon us. It may well be the most
demanding form of government and, in the absence of high degrees of foresiglit and
responsibility in both the citizen and public servant constitutional democracy tends to
degenerate. As citizens, indeed, as a free people, we must remain ever vigilant of the
reality that the greatest menace to our Liberty is an uninformed and inert populace. A far
wiser person thalM once noted "a population of sheep, in time, will surely beget a
government of wolves'1: a notion and sentiment often expressed by those who
participated in the ratification debates surrounding the adoption of our Constitution.
Continued and informed acquaintance with the philosophical underpinnings of our
Constitution and, the essential ideals it symbolizes, is the obligation of all. As soon as
'We the people3, thinking of the affairs of State, say "They do not concern me", it is time
to conclude that the State is in decline.
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"Every man by nature has a right to everything he needs.
--Rousseau
"All the members of human society stand in need of each
others assistance. Society may subsist, though not in the
most comfortable state, without beneficence; but the
prevalence of injustice must utterly destroy it."'
-Adam Smith
Generally speaking [ would agree with Justice Scalia: our Consti^tTorTisa^'legaldocument". It is the written document that was drafted at Philadelphia in 1787, along
with the amendments that have since been added. As a 'legal document1' it is remarkable
and extraordinary, because it succinctly reflects an ingenious balancing act between
competitive political forces and philosophies; and more over, it was designed to prevent
just the sort of concentration of unrepresented authority that culminated in our
Revolution, and break away from British rule. Nonetheless, as a "legal document" it was
not understood as, nor was it intended to be—at least not by those who drafted and
ratified it—static in meaning. In the words of Chief Justice John Marshall (upon whom,
posthumously, our country has conferred the title, "The Great Chief justice") they, i.e.fftf
Framers, envisioned that our Constitution should "endure for ages to come and
consequently be adapted to various crises in human affairs." Chief Justice John Marshall
presided over the High Court during a period when the dominance of the Constitutional
document prevailed, i.e., a period when the tradition concerning the original
establishment of the "legal document", as Justice Scalia refers to it, was still fresh in the
minds of the people and, indeed, a time when many of those who drafted the document
were still active in the politics of the day: it was a time when, in the person and office of
the Chief Justice, the intention of the Framers enjoyed a renewed vigor. 1 do not mean to
imply that John Marshall, like Antonin Scalia. did not have views of his own to advance.
I only mean to intimate that the theories which the former Chief Justice advanced in
support of his preferences were, in fact, frequently verifiable as theories held by those
very human beings who framed our Constitution. Yet, sadly, as time has passed the
Constitutional text and, the philosophies that underscored it, has faded farther into the
background, and the testimony of "The Federalist'. Marshall's essential book of
precedents, is rarely, if ever, cited.
To reference our Constitution as merely a "legal document", i.e.. as little more
than a deed of contract, does a serious disservice to those who gave birth to that
document. Indeed, a contract, if we conceive it broadly enough, may prove to be a
beckoning hand to progress rather than a dead hand on political development^ But
without an understanding of the philosopliical thought that tmder-girds our Constitution,
our deed of political association becomes / little more than a dead letter instrument.
Even a cursory review of our Constitutional heritage will underscore the belief our
Founders had in die principles of Natural Law. Nor do 1 believe that we, in our day.
should wst ignore the service that the doctrine of contract and, Ihe theory of Natural Law
behind it, has rendered to the cause of liberty and to the general cause of political
ptogress. Its fruits may not prove its truths, but we would do well to remember them.
Ji
?•
But I get ahead of myself I suspect that those who, like Justice Scalia, view our
Constitution as a mere * legal document" would earn the ire of Thomas Paine; and ihe
warning he gave when he opened his small book "The Rights of Man", by denouncing
Edmund Burke for seeking to lay the dead hand of 1689 on the living present of 17°I,
and for saying as it were to the Convention Parliament and its antique notion of contract,
"0 Parliament, live forever."
Many decades later another eminent and learned Constitutional scholar summed
up the sentiments of John Marshall, who himself merely echoed the Framers of the
Constitution on this point, in this statement:
. .— "The pTOper--poimc»f-viaw-fr6m~whiGhto-approaert-the task-of interpreting! heConstitution is that of regarding it as a living statute, palpitating with the purpose of the
hour reenacted with every waking breath of the American people, whose primitive right
to determine their institutions is the sole claim to validity as a law and as the matrix of
laws under our system." This contemporary scholar, E.S. Corwin, also commented that
"as a document, the Constitution came from its Framers, and its elaboration was an event
of the greatest historical interest, but as law the Constitution comes from and derives all
its force from the people of the United States of this day and hour." The Framers. Chief
Justice John Marshall, and Professor Corwin were all echoing an idea that had been
expressed in the Seventeenth Century by another learned and eminent jurist. Lord
Halifax, who articulated the sentiment quite succinctly:
•'A Constitution cannot make itself; somebody made it, not at once but at several
times. It is alterable; and by that draweth nearer Perfection; and without suiting itself to
differing Times and Circumstances, it could not live. Its Life is prolonged by changing
seasonably the several Pans of it at several times." Each one of those thinkers, i.e.,
philosophers, is passing on the same core message to us in the present. 'Here is how 1 see
it. This is what the world of human experience means to me. Here are the errors I've
detected in the thinking of those who came before me. This is my best understanding.
Take it and carry on from there/
Under normal circumstances and, as Justice Scalia and others intimate, such
change should come by way of the formal amending process through the will of the
people, and the passage of laws through the legislature as our Constitution makes
provision for. Yet, nevertheless, our appointed judges have an abiding mandate to protect
the liberties and freedoms of individuals from encroachment by government commission
and/or omission. The lessons of history, both ancient and contemporary, attest to the fact
that times arise when there is a necessity forjudges—in accord with their Constitutional
mandate—to step back and by process of comparison and contrast to reflect on what was,
what is. and what is becoming. As Justice Miller noted in 1875, "It must be conceded
that there are.. .rights in every free government beyond the control of state. There are
limitations on [governmental] power which grow out of the essential nature of all free
governments. Implied reservations of individual rights, without which the social compact
could not exist, and which ate respected by all governments entitled to the name."' And,
as observed several decades later by Justice Cardozo. the due process clause of the 14,h
Amendment may proscribe a certain State procedure, not because the proscription was
spelled out in one of the first eight amendments, but because the procedure "offends
some principle of justice so rooted in the tradition and conscience of our people as to be
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ranked as fimdamental.'' because certain proscriptions were "implicit in the concept of
ordered liberty."
To blithely state, as Justice Scalia does that what the Constitution means "is what
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it was understood to mean when it was adopted", and simply let the matter rest there is
offensive to any human being capable of thinking for themselves. The proper historical
inquiry is one which seeks to determine what history teaches are the traditions from
which our National Constitutional jurisprudence developed as well as the traditions from
which it broke. That tradition is a living tradition and is not slavishly devoted to the
fidelity of the past. A point that James Madison succinctly made when promoting the
unfrati&ed Constitution:
'The glory of the people of America is that whilst they have paid a decent regard
to the opinions of former times and other nations, they have not suffered a blind
veneration for antiquity, for custom, or for names, to overrule the suggestion of their own
good sense, the knowledge of their own situation, and the lessons of their own
experience."
The Framers of our Constitution never intended that the philosophy of law should
become so fixed and archaic whi&fi all the other sciences may go forward in the discovery
of truth and utilize it whenever it is found. It is simply misguided to attempt to shackle
our minds to a civilization as it existed over 200 years ago, and it was not the intention of
the Framers of our Constitution that we should do so. Justice Scalia and those of like
(•' \ > mind fail to grasp or; simply lose sight of, the reality that the human spirit does not
conform to the neat models^ formulae within which scientifically minded theorists seek
to contain it: but is, on the contrary, distinguished by the great diversity of forms it
manifests in the context of different societies and cultures.
Justice Scalia also bemoans that confirmation hearings for appointees to the
highest court amount to "one issue after another on what the Bill of Rights ought to be."
Given the indisputable historical record it is quite clear that those who won our
independence—though they had their points of contention with each other—agreed on
core, i.e., fundamentaljprinciples, such as their belief that the final end of the State was to
make us free to develop our fadillties; that in its government deliberative forces should
prevail over the arbitrary; they valued liberty both as an end and as a means; the^jbelieved,
as a self-evident truth, that human beings were endowed with inalienable natural rights;
they believed liberty to be the secret of happiness and courage to be the secret of liberty,
to touch on just a few of the essential basics. That being a given it is odd that a Justice.
sitting on the Highest Court o$ our land, would be perturbed by our concern or, the
concern of those we elect to represent us„ about what the "Bill of Rights ought to be"
when "We the people" are deciding who to entrust with the authority to guard our rights.
One of the salient aspects that we, as citizens, must remain ever cognizant of in
our contemporary debates concerning our Constitution is the fact that our personal rights
lay at the very foundation of our culture; they are the ultimate justification we give for
having a government in the first instance and the absolute limit of government
interference. It is also important for us to recall that initially our Constitutions original
•y
structuring of our government did not, in the minds of the Colonists or the Framers,
-.
satisfactorily address oirof the central concerns of the Revolution, i.e., the protection of
individual rights from both State and Federal government That oversight end^nfjered
much heated debate—to the degree that ratification was seriously jeopardized—and the
w
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outcome was that Congress proposed and, the various states approved, a Bill of Rights. It
is of central importance to keep in mind that the debate was not about whether or not we,
as human beings, were possessed of inalienable natural rights; but, whether or not it was
necessary to amend a Bill of Rights to the Constitution to secure those rights. Some of
the Framers were of the mind that the procedural safeguards contained in the original
Constitution implicitly protected against encroachments upon individual rights, and other
Framers did not. That an individual is in possession of natural rights apart from the
positive enactments of Jaw was never in dispute. Nor can it be disputed today when one
considers that centraUmtnds of the Framers, whether leading figures like Madison.
Jefferson, Wi Ison and Masonr-c*-lesset figures-like-Williams,- Spaight OF-IngeFsoltrwas-atempered version of the oldest liberty—oriented political philosophies: i,e, the school of
natural law and natural rights. The Framers conception of natural rights or, as we refer to
them today, human rights, held that certain rights were inalienable; that they were beyond
the powers of the government and could not be surrendered to it, despite even a written
constitution to the contrary. The staunch federalist, Alexander Hamilton (who opposed
the adoption of a Bill of Rights as unnecessary) stated the belief clearly:
'The Sacred Rights of Mankind are not to be rummaged for among old
parchments or musty records. They are written, as with a sunbeam, in the whole volume
of human nature, by the hand of Divinity itself, and can never be erased or obscured by
mortal power.'*
*tl
The intent ofthe original 10 amendments to our completed Constitution was to
articulate and guarantee some ofthe most obvious natural rights that had been alluded to
in our Declaration of Independence: with the Ninth Amendment designed to reflect the
incompleteness of that original enumeration. To understand the conception of the rights
held by the Framers, to understand our Bill of Rights and, indeed, to understand our
Constitution, we must have some basic understanding ofthe political theory that
underscored our Revolution, ft was the political theory expounded by such philosophers
as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke that penetrated into the
American Colonies, and passed through men such as Samuel Adams and Thomas
Jefferson into our Declaration of Independence. For the first time in history the "rights of
man", not the rulers, were laid as the foundation of a nation. The unique and profound
achievement of our Declaration is that, at its very heart, it gave timeless symbolization in
words to a philosophy of human rights and self-government.
The political philosophy that underscored our Revolution and. gave shape to our
Nation, found its root in the metaphor ofthe social contract; and the Natural Law
principles that buttressed that philosophy^ The theory of a social contract, which by the
18th Century, came to dominate and, & all but define, social and political philosophy.
The metaphor ofthe social contract and the state of nature remains, even today, at the
very center of our debates about what constitutes a just, civilized society. Our
Declaration is perhaps the single most famous example of the social contract theory in
practical politics. For the first time and. in no uncertain terms, a group of people
proclaimed loudly "that governments are instituted among men, deriving their just
powers from the consent ofthe governed": and: further, they audaciously declared that
when a government fails to perform its duties, "it is the right ofthe people to alter or
abolish" and, more so, even '"their duty to throw off such a government, and to provide
new guards for.their limire security "
f
\
Our Declaration is also one ofthe clearest and, best known, statements concerning
natural rights; and clearly echoes the Lockean theme in reference to Natural Laws and
natural rights. The Founders of our nation understood and observed a distinction between
"natural" and "civil" (i.e . positive) rights; and they considered both forms to be
''essential to secure the liberty ofthe people " A lesser-known source, though hardly less
important or less valid, in reference to our natural rights is encapsulated wit hip, this NjnrijLy-—
amendment to our Constitution. Our Ninth amendment contains an implicit(reft^Syto (JWt &-'yy
our natural rights by stating, "The enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the people." Legal positivists,
i.e.. those who deny that there exists any necessary connection between the law and
morality, tend to deny the existence of natural Iaw/nghts7 They^iewlFe_Nfrith~"
amendment as an unfortunate glitch in our Constitution because it appears to be a direct
affirmation of natural rights. When the amendment was adopted, those other rights
retained by the people were those natural rights referred to in the second paragraph of our
Declaration, and those that could be deduced there»from through rational, reasoned,
reflection. Natural rights are inherent in human nature and are, therefore, inalienable and
belong to every human being without exception.
Religious dogma aside, Natural Law, at its core, simply posits that there is a
moral logic built into us: a logic that reasonable people can grasp through disciplined
reflection on the dynamics of human action. The sounder versions of natural law theory,
e.g., Plato, Aristotle and Aquinas, consider morality "natural" precisely because
reasonable. That such a moral logic exists, i.e., that it is available to all human beings
through rational reflection, and that iJrcan be intelligibly and, cogently, argued in the
public forum is, I believe, a matter of common sense. The exponents of natural/human
rights can and, do, cogently posit that the existence of natural rights derives from the
distinction between needs and wants or stated another way, between natural and acquired
desires. Since human needs are the needs inherent in human nature, natural rights are
rights to that which human beings need in order to live a morally good human life in a
relative state of well -being. Well-being is normally understood to be both a condition of
the good life and what the good life achieves.
Those who signed our Declaration and drafted our Constitution, actually
understood, defended, and vindicated human rights to the greatest extern^ that they had
ever been recognized up to that time. However, they did not fully conceive of human
rights as we understand themtoday. Nor can we fully predict what human rights ofthe
future may be in light ofthe development and progress ofthe human race. In the past,
humanity has advanced owing in part to its tendency to reflect on its own condition. The
Spirit that gave life to our Declaration, the Spirit that sustains our Constitution, the Spirit
that allows us to flourish in our liberty and freedoms cannot thrive without impassioned
and, informed, engagement on the part ofthe individual in the conflicts ofthe day.
Yes, "Governments cannot stand to not be in control, and the minions of
government—judges—still do the decision making", as Professor Holt notes. But,
ultimately, it is the will ofthe people that determines the meaning ofthe Constitution
from one generation to the next. ..provided that we remain vigilant.
EXHIBIT 16
PRISONER 81
While Washington adjusted to Mecklenburg, elsewhere the wheels
of justice were turning. On November 30, 1984 the Virginia Supreme
Court rejected Washington's motions on direct appeal. Having considered the arguments of counselor John Scott and the counterarguments of
assistant attorney general Linwood T. Wells Jr., the justices sided with the
state. The trial record furnished "strong factual support" for the defendant's having made an intelligent waiver of his Miranda rights and a voluntary confession; a change of venue was not warranted; no additional
notification of his rights was necessary when Washington was taken to
the crime scene in Culpeper; the "unique characteristic of (the) shirt" together with testimony connecting the shirt to the crime scene "was sufficient proof of its authenticity"; and so on."15 Moreover, the court held that
the crime was proportional to others netting a death sentence, and the
sentence was not imposed with undue passion or prejudice.
"Without provocation, Washington picked out his victim, a
stranger, on the street, stalked her to her home, broke in, forcibly raped
her, stabbed her 38 times, and left her to bleed to death, all in the presence of her two helpless children," concluded the formal opinion.
Five months later on May 13,1985, the U.S. Supreme Court rejected
Washington's plea for a review of the state court action, and on June 30,
1985, Judge Lloyd Sullenberger of the Culpeper Circuit Court set a September 5 execution date. The only way to block that rendezvous would
be to extend the legal process through the filing of state and federal
habeas claims. The fact that such relief was available to Washington did
not mean that he had automatic access to it, however. There was a catch.
John Scott had continued to represent Washington through his direct
appeal to the Virginia Supreme Court, but now Scott was gone. The
state did not provide attorneys for habeas filings, and the Washington
family was too poor to hire one. The official expectation was that Earl
Washington, through his access to the prison law library and to a couple of attorneys who were sporadically at Mecklenburg, would set in
motion his own habeas claims.
To Joe Giarratano and Marie Deans, whose friendships with Washington deepened during his first year at Mecklenburg, the idea was preposterous. If Earl Washington was to live, there were only two options:
he could start his own habeas appeals or they could find someone to do
it for him. It did not help their morale to know that Washington appeared to have total confidence in their ability to rescue him.
82 PRISONER,
"Back then, Earl was compliant and really trusting," Giarratano recalled. "I don't think he had a clue what was happening. If I said it was
okay, then that was okay with him. If a guard would have said, 'Earl,
see that chair over there? Do us a favor. Go sit in it. We'll be there in a
minute to strap you in,' Earl would have said, 'Okay/ and went to sit in
the chair to wait. At least back then."46
8
Deadline
ERIC FREEDMAN was still at his desk in the 345 Park Avenue offices
of Paul, Weiss, Rifkind, Wharton St Garrison when the telephone rang
at 10 P.M.
On the line was a young associate, Marty Geer, who had flow n from
Mew York to Virginia that morning—August 14,1985—to identify possible representatives for a class action lawsuit. Their prestigious Manhattan law firm had decided to provide legal support for a complaint
filed pro se (without attorney) the previous month by a Virginia death
row prisoner named Joe Giarratano. Giarratano was attacking as unconstitutional the failure of the state of Virginia to provide lawyers for
death-sentenced prisoners during habeas appeals. While the petition
had Joe's name on it, he had filed it on behalf of a fellow prisoner, a
mentally retarded man assigned a September 5 execution date. The
man's appeals had not run out, but he had no attorney to file for a stay
of the execution. His name was Earl Washington Jr. Unless something
happened quickly, he would die.
Marty Geer first heard Earl Washington's name and story when she
arrived at the Mecklenburg Correctional Center on August 14 to interview Giarratano about the class action.1 Walking into a central visiting
room accompanied by her escort, Marie Deans, Geer was startled by the
intensity of the prisoner's greeting. "Earl Washington has an IQ of 69,
an execution date three weeks away and no lawyer. What the hell are
you going to do about it?" Giarratano asked, skipping the formality of
a "hello."
What Giarratano wanted was for Paul, Weiss not only to pick up the
class action but to try to block Washington's execution by filing a state
habeas petition on his behalf as quickly as possible. Now Geer was
seeking advice from Eric Freedman, who was as close as Paul, Weiss
came to an expert on the death penalty. "I've got the perfect plaintiff for
83
84 DEADLINE
the class action," she told Eric when he answered the telephone. "He's
retarded. He's probably innocent. There's only one problem. They can't
find him a lawyer. He's going to be executed on September 5."
Should Paul, Weiss agree to prepare the state habeas petition? she
asked.
Freedman listened carefully, made some mental calculations about
the steps that would be necessary to get this case before a federal judge
who might stay the execution, or—worst case—to the U.S. Supreme
Court. The timetable was tight, but not impossible. "Find out all you
can from Washington tomorrow, about his life, his trial, his lawyer," he
urged. He agreed to approach Jay Topkis, a senior partner in Paul, Weiss
and an inspirational force behind much of the firm's pro bono litigation,
about the possibility of taking on the Earl Washington state habeas petition.2
If Geer had any doubt about Washington's inability to spearhead
his own legal defense, it was erased within moments of their meeting
the next day. Neatly groomed and muscular from working out, Washington might have seemed intimidating because of his size, Geer
thought. But his childlike demeanor and obvious distress at the interview made him seem more sympathetic than frightening.
"What do your parents do?" she asked, hoping to set him at ease.
Washington was silent. Looking first confused, then agitated, he
began rubbing his hands nervously up and down on his face.
Marie Deans, who for the second day was accompanying Geer,
asked gently, "Earl, are they farmers?"
A smile of recognition engulfed his face as he nodded, "Yes."
An unusual convergence of events brought Marty Geer to this remote spot for her first prison visit. The daughter of educators and a 1983
graduate of the University of North Carolina law school at Chapel Hill,
Geer had been at Paul, Weiss for only two years, but she was already
highly regarded. Under the guidance of Topkis, the law firm had been
searching for a class action lawsuit that would have a broader impact
on death penalty litigation than the individual cases its attorneys had
been handling pro bono. The discussion, held in conjunction with the
NAACP Legal Defense Fund, was coalescing around the idea of attacking inadequate trial counsel in capital cases.1 The strategists believed
that there would be far fewer death sentences if defendants were better
represented at trial. Geer was assigned to research a possible lawsuit.
Her attention was directed to Virginia because its trial counsel system
DEADLINE 85
in capital cases seemed almost obscene. No special training or expertise
was required, and the average amount paid trial counsel in capital cases
involving indigent defendants was $649.4
The law firm's plans had taken a detour earlier in the summer, however. While the brain trust of the death penalty abolitionist movement
was charting strategy in Manhattan, Joe Giarratano was doing his own
thinking on death row at Mecklenburg. A ninth grade dropout who was
living in a drug-induced haze when he was arrested for the 1979 murder of a Norfolk woman and her daughter, Giarratano had undergone
a prison transformation, schooling himself—with the support of Marie
Deans—in literature, spirituality, philosophy, and the law.5 It struck him
as both unfair and unconstitutional that, once the first round of direct
appeals was over in a capital case, the state of Virginia did nothing more
than supply prisoners with paper, pen, stamps, access to a law library,
and a minimal bit of legal advice about what came next.
During the mandatory, direct appeals of capital convictions, the
state provided indigent prisoners an attorney. But once that stage was
finished, the state considered its obligation largely over. If an inmate
wanted to push his case further by raising state and federal habeas
claims, he was expected to file legal papers outlining basic claims and
requesting assistance with volunteer help or on his own. The state postconviction petition is among the most critical documents in the capital
litigation process. 6 To expect self-representation by a man such as Washington, who could barely read and appeared to have only cursory understanding of what had happened to him, was ludicrous.
Nor was it right, Giarratano thought, that Marie was spending
sleepless nights, even jeopardizing her health, scouring the country for
volunteer legal help. 7 So far, she had succeeded in finding pro bono attorneys, but as more and more men approached their execution dates,
the need for assistance was accelerating.
Aided by the prison law library, his own inquisitive mind, and a
handful of books—Legal Research in a Nutshell and How to Find the Law—
also supplied by Deans, Giarratano developed a legal theory: an indigent man's First Amendment right of access to the courts was violated
if he was not assigned legal counsel for the full range of appeals in a
capital case. This differed from the more common argument that lack of
an attorney might violate the Fourteenth Amendment right to due
process of the law. Giarratano and Deans shopped out the idea to several prominent law firms. None bit, although John C. "Jack" Boger—a
86 DEADLINE
former Paul, Weiss attorney who was heading up the Legal Defense
--. Fund's death penalty work and was considered one of the nation's premier abolitionist attorneys—was intrigued.
The failure to find legal support for Giarratano's idea stemmed in
large measure from the fear that any such case would be lost, making
matters worse. The U.S. Supreme Court held in a landmark 1962 ruling,
Gideon v. Waimoright, that indigent prisoners had a right to counsel in
state criminal cases and on direct appeal.8 But the court later ruled, in
Ross v. Moffttt, that there was no constitutional right to court-appointed
counsel for petitions to the U.S. Supreme Court for writs of certiorari,
which are formal requests for the court to consider an appeal. Legal
scholars generally believed the Ross decision meant that there was no
right to counsel for habeas appeals, even when a death sentence was involved. Some states, although not Virginia, were choosing to provide
attorneys for the later stages of appeals. Law firms that reviewed the Giarratano proposal feared that a defeat in court would prompt states that
were cooperative to become less so.9
That rationale might also have sufficed for Giarratano, had not the
case of Earl Washington so dramatically highlighted the system's flaws.
With the U.S. Supreme Court's refusal to review Virginia's confirmation
of the trial court action and the state's setting of a September 5 execution date for Washington, Giarratano abandoned his effort to recruit a
law firm to structure a class action. He began putting together the document himself. His vehicle was a civil lawsuit filed against state officials
asserting deprivation of federal constitutional rights, known as a Section 1983 complaint. If he could get the matter before a court, Giarratano thought, perhaps he could save Washington. During visits to the
prison law library, Giarratano sat in a locked cage honing his language,
while a designated prisoner or guard retrieved books from the stacks.
He scratched out the document first in long hand, then copied it on an
electric typewriter supplied by Deans. On July 3, with the execution two
months away, the complaint that later would become styled Giarratano
v. Murray, was received by the U.S. District Court for the Eastern District of Virginia. The essence ofthe request was laid out in the first cause
of action: "Plaintiff's First Amendment rights of access to the courts are
violated when indigent capitally sentenced individuals are not afforded
legal counsel to prefect [sic] collateral challenges evolving from their
conviction and death sentence; and can be executed by State authorities,
DEADLINE 87
under existing policy or practice, if the individual cannot initiate proceedings." Earl Washington embodied Giarratano's claim.10
"Without Earl as the plaintiff, all the case law from the U.S.
Supreme Court down was fully against us," Giarratano explained years
later after his own death sentence was commuted to life in prison as the
result of an international campaign casting doubt on his guilt. "There
was not another man on the row who could have been the plaintiff in
that case and the case survive summary dismissal. Earl was the constitutional dilemma that could not be rationalized around. 'Yes, Mr. Washington, you are free to appeal your case. Go to the law library and leam
how to draft your petition. If you have questions, you can contact the
institutional attorney; and, oh, if you don't get filed, we will kill you in
thirty days.'"
Informed of Giarratano's filing, the national network of death
penalty attorneys spun into action. If the prisoner was going forward,
then the best course was to back him up with expert legal representation. Jack Boger of the Legal Defense Fund wanted the complaint
turned into a class action. He contacted Jay Topkis, his old colleague at
Paul, Weiss, and urged him to take the case. Topkis agreed to do so, putting aside the planned assault on inadequate trial counsel. On August
14—a day when the thermometer hit a hundred degrees in Richmond—
Marty Geer arrived in Virginia to identify representatives for the revised class action.
What Giarratano hoped was that Paul, Weiss would push immediately for a temporary restraining order from the federal judge handling
the Section 1983 complaint in order to block Washington's execution.
Geer thought that was a risky course, unlikely to succeed, while diverting attention from efforts to find a different attorney to file Washington's state habeas appeal. The telephone conversation with Freedman
led to a compromise. Giarratano would write a letter about Washington
to the judge; the Paul, Weiss attorneys would proceed as planned.
Giarratano's subsequent letter, which became part of the permanent record in the class action, laid out the refusal of the Virginia courts
to appoint Washington an attorney and noted the prisoner's mental incapacity. At the time of his arrest six years earlier, Giarratano had appeared psychologically crippled and barely communicative. Now he
wrote: "I feel an enormous sense of responsibility with Mr. Washington's life at stake. It appears to me that if Mr. Washington is executed
88 DEADLINE
that fundamental principles of Due Process and Equal Protection
would, literally, be thrown out the window."
The prisoner went on to say that he had spent most of the previous
twenty-four hours doing legal research. He identified more than half a
dozen cases supporting his claim."
After meeting with Giarratano and then Washington, Geer returned to New York, just as her star plaintiff was about to be transferred
to the state penitentiary in Richmond for his September 5 execution.
Back in Manhattan, Eric Freedman's suggestion that Paul, Weiss pick
up Washington's habeas appeal had been greeted skeptically by Topkis,
who feared complicating the right-to-counsel class action. The partner
authorized Freedman and Geer to begin researching a habeas appeal
that might stop the execution. But he urged them to find another law
firm to take over the filing. Working backward from September 5, Eric
developed a time line that would allow the case to reach the U.S.
Supreme Court, if necessary, before the execution date. To meet that
schedule, a full petition had to be submitted to Judge Sullenberger in
Culpeper no later than August 27. When Geer returned from Richmond
with only cursory knowledge of Washington's case and without any
trial files, twelve days remained.
Six years out of the public-spirited environment of Yale Law School,
Eric Freedman was already something of a legend among young Paul,
Weiss associates interested in using the law for public service. They had
watched him on national television defending Texan Charlie Brooks,
who in 1982 became the first man executed in the United States by lethal
injection, and they were aware that the attorney had played important
roles in a number of other death penalty cases handled by the firm. The
summer of 1985 was only eight years removed from the point at which
the nation had resumed executions following a ten-year hiatus. From
1977 to 1983, there were only eleven executions nationwide, but the
pace was quickening. In 1984 alone, the number grew to twenty-one.12
Bespectacled, brilliant, frequently disheveled, a font of ideas,
Freedman already had the aura of the kind of person he aspired to be: a
law professor doing public interest work on the side. With a father who
had been a foreign editor and later assistant managing editor of the Neiv
York Times and a maternal grandfather who had been a prominent Jewish banker and pre-World War II leader of the parliamentary opposition
in Hungary, Freedman had the pedigree as well as the intellectual acu-
92 DEADLINE
would meet her later in the day. If, as expected, Sullenberger denied the
stay, the team would appeal to the Virginia Supreme Court, which famously issued its refusals in one- or two-sentence orders. Then, it
would be on to federal district court where Eric hoped for a sympathetic
hearing. If all the rulings were against them, the team would reach the
U.S. Supreme Court just before the execution, with no time to spare.
That meant the papers had to be in Culpeper the next day.
Leaving for LaGuardia where she was supposed to catch the last
flight of the evening to Richmond, Matthews was in tears. She was cutting the time too close. Geer hurried her to the car service, trying to offer
reassurance. "If you miss the flight, figure out another way to get
there," Geer urged her young colleague. Later that night, the attorney
was almost asleep when the telephone rang. The phone lines were
crossed and there was a bizarre mixing of conversations, but the message came through. Matthews had made the flight; she was in her hotel
room in Richmond. She would meet Eric Freedman in Culpeper Tuesday afternoon.
It was nearly 4:00 P.M. when Freedman, Matthews, and an attorney
from the local prosecutor's office assembled in Sullenberger's office in
Culpeper's steepled, white-columned courts building. Freedman outlined the key issues in the petition, hoping that Sullenberger would
issue his rejection quickly and they could move on to the next court. Instead, to his amazement, the judge surveyed the documents and said
simply, "Fine. I'll sign a stay."14
"I was in complete shock," Freedman recalled. "I had not the slightest thought in the world that this was going to happen."
Nine days before Earl Washington's date with the electric chair, the
execution was off, at least for a while. Two days later, the Virginia Department of Corrections transferred Washington from the Spring Street
penitentiary back to Mecklenburg. He had been in a cell adjacent to the
death chamber for fourteen days.
In addition to the five individuals who eventually formed the core
of Earl Washington's defense team, a number of others played critical
roles in the prisoner's ultimate release. Among those, none surpassed
death row inmate Giarratano in ingenuity and persistence on Washington's behalf. The civil rights complaint that he filed in July 1985, primarily as a ploy to stop Washington's execution, became the broader class
action lawsuit envisioned by Paul, Weiss when Marty Geer was sent to
Richmond and first met Washington.
DEADLINE 93
As Giarratano's case progressed, it provided a startling picture of
the nonchalance with which Virginia regarded legal representation for
those on death row. Both U.S. District Court Judge Robert Merhige Jr.,
who first heard the case, and the 4th Circuit Court of Appeals sided with
Giarratano in saying that the legal tools provided by the state were inadequate. According to testimony, Virginia had seven institutional attorneys who, in addition to running private law practices, worked parttime to meet the needs of over two thousand prisoners, including the
men on death row. If prisoners needed any direction in launching their
own complex habeas appeals, those lawyers and the prison law library
were their only guaranteed resources. "The scope of assistance these attorneys provide is simply too limited," wrote Merhige in his December
1986 opinion. "For death row inmates, more than the sporadic assistance of a 'talking law book' is needed to enable them to file meaningful legal papers."
When Murray v. Giarratano reached the U.S. Supreme Court, the 5 to
4 decision overrode the lower courts and tilted in favor of the state. But
in a separate opinion, Justice Anthony Kennedy observed that he had
joined the majority because no one had died without a lawyer. If anyone had, Justice Kennedy would be voting the other way, it appeared.
Virginia understood the message. Soon thereafter, the state began automatically appointing attorneys for the habeas appeals of indigent prisoners in capital cases.15
What would have happened to Washington if Giarratano had not
filed his lawsuit and if Paul, Weiss had not come forward to produce a
habeas petition on Washington's behalf? Would Marie Deans have been
able to find an attorney to take the case? And if not, would Washington
have been executed on September 5,1985?
Senior assistant attorney general James Kulp provided an answer of
sorts during questioning by attorney Jon Sasser in a hearing before
Judge Merhige on Giarratano's lawsuit.16
Sasser: (I)f there is an inmate that somehow makes his way to
the death house here in Richmond and still doesn't have
counsel, do you do any motions for stay on his behalf?
Kulp: No, we have no right to intervene on behalf of the inmate. . . .
Judge Merhige: As I understand your testimony, and I hope I
understand it correctly, the short answer to Mr. Sasser is, you
94 DEADLINE
all don't—I am not being critical of it—you don't affirmatively do anything.
Kulp: No, sir. Well, I will take it back, your Honor. I don't think
that that has been true in the past, when I say we don't do
anything affirmatively, because for example, in the Washington case I was on the phone with Marie Deans, who was assuring me they were going to have someone to file. And I kept
saying, let's have them file, please have them file so we don't
get down to the last minute. So I think although we can't go
to court on his behalf, I think we were trying to tell them,
look, do something. That we are not going to oppose a stay.
Sasser: You did something in the Earl Washington case?
Kulp: No, I said except talking to Marie Deans and trying to get
her, she kept advising me that somebody was going to file on
his behalf.
Sasser: Did she tell you who?
Kulp: No, she did not.
Sasser: You are absolutely convinced someone was going to file
on his behalf?
Kulp: No question in my mind; somebody was going to file.
Sasser: If somebody had not, what would have happened say
two days before the execution? Nobody filed yet. What were
you all going to do?
Kulp: If he had made any indication to anyone that he wanted
to file a petition, we would have advised the people at the
penitentiary to have him write it out in a letter and send it
down to Judge Merhige, or anybody else.
Sasser: Would you have sent someone from your office to talk
to him and ask?
Kulp: No.
Sasser: You would have sat and waited for him to come to you?
Kulp: I don't think we have any obligation or any way we can
go in and represent the inmate.
Sasser: If you didn't hear from Mr. Washington, you were going
to execute him whether he had a lawyer or not, isn't that correct?
Kulp: The order would have been carried out I am sure.
Sasser: The order of execution?
Kulp: That is correct.
DEADLINE 95
Literate or not, mentally capable or not, condemned men were expected to launch their constitutional appeals on their own. The state's
belief was that nonlawyer Marie Deans, battling migraines and anxiety,
armed with little more than an iron will, would come up with a lawyer
to help. The state might encourage Deans to press on, but it would do
nothing affirmatively to help her.
In 1985 in Virginia, when Earl Washington came within nine days
of execution, that was the system.
EXHIBIT 17
J u l y 6, 1985
C l e r k ' s Office
S O M s t r i c t Court
For tBe^-S&stern D i s t r i c t of Va.
P.O. Box 2-AB
Richmond , Va. 2?205
Dear C l e r k ,
Enclosed please fintf a Section 1983 complaint, and a
motion to proceed informa pauperis; WITH attached affidavit. It
would be appreciated if you would process th^at the earliest
possible date.
further, it would be appreciated if you would bring to the
Judge's attention the seriousness of the circumstance that
promted this filing;
There are currently five individuals here on death row
who do not have attorney's to represent their cause. Bach of
these men have been denied by the Virginia Supreme Court on
automatic review. These men are: Syvasky Poyner, scheduled
execution date for July 1 2th, and a filing deadline for a Cert,
petition on August 14th; Dana Edmonds, no scheduled date for
execution, but an August deadline for a Cert, petition; Earl
Washington, no execution date but Cert, due in August; Johnny
Watkins, no execution date but Cert, due in August; and Richard
Boggs, no execution date with Cert, due in August. Hone of these
men have attorneys to represent their cause nor can they afford
them. Hone of them have any idea of the circumstance they are in
nor do they understand what needs to be done.
Me. Marie Deans, Director of the Virginia Coalition on
V
Jails & Prisons, has been trying to recruit attorneys to assist
these men on a pro bono, basis. Hit these efforts have proved
unfruitful in this state, and she is now seeking to find attorneys
outside of the state to help. She can be contacted at 553-0093, in
Richmond.
Tour efforts are much appreciated. /
Res
P. 0. Box
Boydton, VA.
IN THE UNITED STATES DISTRICT CCURT
FOR THE EASTERH DISTRICT OP VIRGINIA
Richmond Division
JOSEPH M. GIARRATANO, et al. ,
V.
Civil Action He.
Allyn R. Sielaff; and
Commonwealth of Virginia
Defendants
MOTION FOR LEAVE TO PROCEED IN FORMA PiflJ PERIS
Plaintiff Joseph M. Giarratano, pursuant to 28 U.S.C.
Section 1915, moves this Court for an order permitting him to
proceed without prepayment of fees and costs or security. Plaintiff!
has attached a declaration in support of this notion.
Respectfully submitted,
Joseph M.
Larsatane, pro se
Mecklenburg Correctional^
,onaT~CCenter
P.O. Box 500 Boydton, Virginia 23917
Dated: July
II
>
, 1985-
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OP VIRGINIA
Richmond Division
JOSEPH M. GIARRATANO, et al.,
Plaintiff's
Civil Action Ho.
v^
AILYH R. SIELAPP, and
COMMONWEALTH OP VIRGINIA
Defendants
DECLARATION IN SUPPORT OP MOTION TO PROCEED
IN PORMA PAUPERIS
I, Joseph M. Giarratano, am the plaintiff in the above
entitled case. In support of my motion to proceed without being
required to prepay fees or costs or give security therefor,!
state that because of my poverty I am unable to pay the costs
of said proceedings or to give security therefor and that I
believe I am entitled to redress.
I declare that the resposes which I have made below are true:
1. That I am presently incarcerated under sentence of
death and that I am not employed.
2. That in the past 12 nonths I have received money from
the following sources; $1,250 dollars by virtue of a settlement
in a civil action processed in this Court. Said money was turned
over to my pro bono counsel to hire a private investigator, and
i
an expext witness to testify in my behalf: said funds have since
been used in full. I receive $20 dollars a month from a friend
to cover my postage needs, and hygiene needs while incarcerated.
3. That I have no money in any checking or savings account.
Nor do I own any real property, stocks, bonds, notes, autos, or
any other pi-operty of value. And, to date I only have 5£ in my
- 2-
prison account.
I understand that any false statement made in this
declaration will subject me to penalties ro£ >erjur;
I declare under penalty of perjury that the foregoing
is true and correct.
Signed this
3
day of July, 1985.
Joseph
atano, pro se
EXHIBIT 18
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OP VIRGINIA
(Richmond D i v i s i o n )
Joseph M. G i a r r a t a n o ,
John Doe(s)
Plaintiff's
Civil Action No.
V.
Allyn R. Sielaff, Director
Virginia Department of Corr,
Commonwealth of Virginia,
Defendant's
COMPLAINT AND JURISDICTION
This is a Sec. 1983 action filed by Joseph M. Giarratano,
and John doe(s) plaintiff's, a state prisoner, alleging violation
of constitutional rights and seeking declaratory judgment, and
injunctive relief.
I
!
JURISDICTION
1. This is a civil rights action under 4-2 U.S. C section
1983. This Court has jurisdiction under 2BU,S,C. section 1343.
PARTIES
2. Plaintiff Joseph M. Giarratano is presently incarcerated
at the Mecklenburg Correctional Center, Boydton, Virginia. Plaintiff Giarratano is currently under sentence of death.
3. Plaintiff's John Doe are various individuals also housed
at the Mecklenburg Correctional Center also under sentence of
death.
4. Defendant Allyn R. Sielaff is the current director of
the Virginia Department of Corrections, and by virtue of his
;
- 2-
office retains physical custody over the parties plaintiff.
Defendant Sielaff's office, by authority invested by the state
of Virginia, will carry out and oversee the executions of the
various plaintiff's: when such dates for execution are ordered.
5. Defendant Commonwealth of Virginia, by law, has the
authority to inact statutes governing use of capital punishment
in it's jurisdiction for violation of the law.
STATEMENT OP FACTS
6. Indigent individuals convicted of capital crimes and
sentenced to death in the state of Virginia are afforded legal
counsel, at the Commonwealth's expence, at both stages of the
bifurcated capital trial process. Such appointment of counsel
to indigent defendants encompasses the automatic review of the
conviction and or sentence by the Virginia Supreme Court, as is
mandated by state law. After such review by the Virginia Supreme
Court the appointment of counsel is severed. Hereinafter, the
indigent defendant can Beek relief try means of the discretionary
petition for writ of certiorari, to the United States Supreme
Court. The other means for collateral challenge open to the
capitally sentenced individual are: Petition for state Habeas
Corpus relief; and after all available state remedies are exhausted, one may seek relief under the federal habeas corpus statutes*
7- The Commonwealth will not appoint counsel to an indigent
capitally sentenced person to assist in collateral challenges.
After the automatic review by the Virginia Supreme Court, and
if the appeal is denied, the state of Virginia can/will set a
date for execution; and if the individual cannot hire an attorney,
- 3 or is, because of mental deficieny,. illiterate, unlearned in
death law and procedures, or cannot find an attorney to act in
his behalf on a pro bono basis, unable to perfect an appeal or
file for a stay; the state of Virginia will proceed • with the
execution on the mere basis that the indigent (or otherwise
handicapped), has not filed an appeal or motion for a stay.
Whereas, the capitally sentenced individual who has funds to
hire counsel to file the necessary papers to initiate the collateral challenge and motion for a stay of execution can receive
the full benefit of due process.
1 /
CLAIMS
Pirst Cause of Action
8. The actions of the defendants stated in paragraphs 6
and 7, supra., deny plaintiff's Pirst Amendment rights to access
to the Courts.
9- Plaintiff's Pirst Amendment rights of access to the
li
i courts are violated when indigent capitally sentenced individuals
are not afforded legal counsel to prefect collateral challenges
evolving from their conviction and death sentence; and can be
TJ Though
the reviewing Court where an appeal is filed has the
discretion to appoint counsel for the indigent— the initial
papers must be filed before the court can invoke its authority
- 4 executed by the State authorities, under existing policy or
practice, if the individual cannot initiate proceedings.
Second Cause of Action
10. Plaintiff's Fourteenth Amendment rights to
equal
protection of the laws are violated when the State entertains
an appeal by a capitally sentenced individual who can afford an
attorney, but will execute another captially sentenced individual
who is unable to initiate the collateral process.
Third Cause of Action
11. Plaintiff's Fifth and Fourteenth Amendment rights to
due process of the law are violated when the state refuses to
appoint legal counsel to assist the indigent (or otherwise handicapped) , capitally sentenced individual in the perfection of a
collateral challenge to his sentence and/or conviction and, at
the same time, execute the individual if said appeal is not filed.
_£_/
RELIEF
WHEREFORE, plaintiff requests this Honorable Court grant
the following relief; and any ether relief the Court believes to
be just and proper:
TT
Though the indigent capitally sentenced individual is permitted to proceed pro se with his collateral challenge - the
right become s salutory without the means or capability to
perfect/initiate the process.
-5-
A. Issue a declaratory judgment that defendants violate the
United States Constitution when they:
1. do not appoint legal assistance (counsel) to indigent
capitally sentenced individuals to perfect a collateral challenge
of their convictions and/or sentences and, at the same time, atari
the execution process when said appeal is not initiated or filed.
B. Issue an injunction ordering that defendants do not start the
execution Process until the indigent (or otherwise handicapped),
capitally senten'ed •'ndiv-tdual is able + o Initiat- the collateral
challenge process-
Rl spec tfull/, submitted,
•I
i
I:
'!
ii
Si
!!
!l
ii
:f
Joseph M.
Mecklenburfe C o r r e c t i o n s .
P o s t Office Box 500
Boydton, Virginia
23917
EXHIBIT 19
(
c
August 19, 1984
Joseph M, Giarratano
. Mecklenburg Correctional Cntr.
P. 0. Box 500
3'oydton, Virginia 23917
The Honorable Robert R. Merighe
United States District Judge
P. 0. Box 2-AD
Richmond, Virginia 23205
RE: Joseph M. Giarratano, et al. v. Allyn R. Sielaff.
et al.. Civ. Act. NO. 85-0655-R
Dear Judge Merighe,
I am writing at this time to request guidance of the
Court regarding a matter of great concern. I sincerely
apologize if this letter is not proper, but the gravity of
the situation leaves me at a l o s s t a n M H H 0 H f c > ,
A fellow co-plaintiff in the above styled matter, Earl
Washington, Jr., was transfered to the State Pen on August
16, for execution on September 5, 1985. Mr. Washington has
all of his State post-conviction remedies open to him: unfortunately Mr. Washington is mentally incapable of acting in
his own behalf. The Virginia Supreme Court has denied a
request to appoint counsel to assist him in persuing a petition
for staoe habeas corpus; or to stay the mandate. Because
of his Indigency he cannot retain counsel.
Ms. Marie Deans, Director of the Virginia Coalition on
Jails and Prisons, has spoken with well over 50 attorneys
in hopes that one would assist on a pro bono basis. To date
all of these efforts have failed. The situation as described
above has become common here of late. Ten days ago, with
permission of the U.S. Supreme Court, I filed two cert, petitions on behalf of another co-plaintiff in the same situation,
and circumstances.
I feel an enormous sense of responsibility with Mr.
Washington's life at stake, and at a loss as to how to proceed.
The allegations in my pro se complaint encompass this very
dilemma. The Court Order 1dated August 6, 1985» in the instant
case, directs defendants to file their response by the 26th
of August; and, I am directed to file my return 20 days
thereafter. It seems that ray co-plaintiff will be executed
before any response by me could be filed; or before any
proper state relief could be sought. '*
It appears to me that if Mr. Washington is executed thit
fundamental principles of Due Process'and Squal Protection
would, literally, be thrown out of the window. I have spent
c
>
c
The Honorable Robert R. Kerighe
Page Two
August 19, 1985
the majority of the past 24 hours doing general research in
this area and have located fairly strong precedent that would
support my basic proposition. Most notable would be the line
of "death is different" .case, e.g.: Lockettev. Ohio, 438 U.S.
586 (1978); ffoodson v. North Carolina. 428 U.'S 280 (1970): and,
Shaw v. Martin. 613 F.2d 487 (4th Cir. 1980).
There is also precedent which indicates that some provision
must be made to ensure that prisoners' have the assistance
necessary to file petitions and complaints which will in fact
be fully considered by the court. Johnson v. Avery, 393 U.3
483 (1969); Bounds v. Smith, 430 U.S. 17 (1977); and, Brltt
v. North Carolina, 404 U.S. 226 (1971); also, Douglas v. Calif.
372 tf.S. 353 (1969).
The ruling in Shaw v. Martin, supra., would appear to a
support the theory that the first round of collateral appeals
is very important, and an accepted tenet of Due Process. Also,
in Gregg v. Georgia,428 U.S. 153 (1976), there is the strong
admonition to ensure that every safeguard is observed in all
death casea.
I believe I can make a good case under the law to support
the basic allegations in my complaint, but fear that it would
be a meaningless ritual if ray co-plaintiff is executed before
I could present my case.
If it is at all possible and proper it would be much
appreciated if the Court would lend its guiding hand in this
current dilemma. Again, I apologize if this letter is out of
order. But, I am truly at a loss as to the proper course to
take.
/
Respectfully,
Joseph M. giarratano
CC;
Office of the Attorney General
101 North Eighth Street
Richmond, Virginia
23219
file
EXHIBIT 20
Declaration of Eric M. Freedman
I, Eric M. Freedman, hereby declare that the following information is true, accurate, and
complete to the best of my knowledge, information, and belief:
1.
I have been a member ofthe bar for twenty-nine years and am currently the
Maurice A. Deane Distinguished Professor of Constitutional Law at the Hofstra University
School of Law. Prior to joining the faculty at Hofstra, I was a litigator with the New York City
law fern of Paul, Weiss, Rifkind, Wharton & Garrison ("Paul, Weiss") from 1979 until 1986,
where I represented clients in general commercial litigation and in numerous pro bono matters. I
also served as a law clerk to the Honorable Irving R. Kaufman ofthe U.S. Court of Appeals for
the Second Circuit.
2.
In the summer of 1985,1 was a senior associate at Paul, Weiss. At the time, the
firm was considering bringing a legal challenge to the failure of Virginia and other states to
appoint counsel to represent indigent death row inmates in post-conviction proceedings when we
learned ofthe lawsuit filed by Joseph Giarratano. In July 1985, Joe had filed a civil rights action
in federal district court contending that Virginia's failure to appoint counsel to represent indigent
inmates on death row in collateral proceedings was unconstitutional.1 The firm decided to take
on the Giarratano v. Murray lawsuit, convert it into a class action, and represent the plaintiff
class.
3.
Martha Geer, who was then an associate at Paul, Weiss, traveled to Virginia in
August 1985, to interview class members. During her meeting with Joe, he raised with her the
plight of Earl Washington, a mentally retarded inmate who was about to be executed without the
This case was ultimately styled Giarratano v. Murray, and is referred to herein by that name.
benefit of counsel or post-conviction review. After her meeting with Joe, Martha described
Earl's case to me.
4.
On August 19, 1985, Joe also wrote to the Honorable Robert R. Merhige,
forcefully calling the Court's attention to Earl's imminent execution - thereby alerting a judicial
officer to his situation.
5.
Persuaded by Joe's account and faced with an imminent execution date, Paul,
Weiss agreed to represent Earl in initiating post-conviction proceedings. Under my direction, the
firm filed a state habeas petition and application for stay of execution on Earl's behalf. The
Honorable Lloyd C. Sullenberger granted the stay application just nine days before Earl was
scheduled to be executed. Years later, after DNA testing showed that he could not have
committed the offense for which he received the death sentence, Earl received an absolute
pardon from Governor Gilmore and was released from prison in 2001.
6.
Joe's efforts in filing the civil rights action and bringing Earl's plight to the
attention of Paul, Weiss were thus indispensable to saving the life of an innocent man who was
not capable of helping himself. Indeed, until Joe intervened Earl's case was headed towards a
tragically different conclusion. At a hearing before Judge Merhige in July, 1986, James Kulp,
senior assistant attorney general for the Commonwealth of Virginia, testified as follows:
Q. If you didn't hear from Mr. Washington, you were going to execute him whether he
had a lawyer or not, isn't that correct?
Kulp: The order would have been carried out I am sure.
Q. The order of execution?
Kulp: That is correct.
7.
I have now known Joe for twenty-four years. Over that period, I have learned that
Joe's assistance to Earl was typical of Joe's efforts on behalf of others. Joe's interest was not in
himself, but in another. He worked within the legal system and prodded it to meet its own
highest aspirations for justice. Joe has done this repeatedly in the decades since he first entered
the Virginia prison system as a physical, mental and emotional wreck.
8.
Joe is living proof that rehabilitation is possible. As a writer, mentor, and activist,
he contributes far more to the broader society than do many in the outside world. Granting
clemency would maximize the opportunities for a sweet, sensible and humane person to benefit
our society and would encourage other prisoners to emulate his demonstration that selftransformation is indeed possible.
G~y^J2L- a,^ 1Q»»
Date *
C ^Tl
Eric M. Freedman
A-~ • mi
EXHIBIT 21
Declaration of Alvin J. Bronstein
I, Alvin J. Bronstein, hereby declare that the following information is true, accurate, and
complete to the best of my knowledge, information, and belief:
1.1 have been a lawyer for fifty-eight years, working almost exclusively in the area of
civil rights and civil liberties and particularly in the field of prisoners' rights, prison conditions,
and prison reforms. During the 1960s, I represented over half of the inmates on Mississippi's
death row and in the early 1970s I represented all thirty-two men on Louisiana's death row. For
the last thirty-seven years, I have focused almost exclusively on prisoners' rights and prison
condition issues. In 1972,1 became the first Director ofthe National Prison Project ofthe
American Civil Liberties Union (the "Prison Project"), a position I held until January 1,1996.
Since 1996,1 have worked as a consultant for state and federal corrections departments and
prisoners* rights advocacy groups, and as an attorney in this area.
2.1 met Joe Giarratano in 1980 when he was an inmate on Virginia's death row at the
Mecklenburg Correctional Center. In 1978, the Prison Project began receiving letters from
Mecklenburg inmates, including inmates on death row and those housed in separate supermaximum security units, alleging prison condition violations, including brutality by correctional
officers. Within a short time after receiving the first letter we started receiving many complaints
about brutality from inmates, and so I met with the Director ofthe Virginia Department of
Corrections to discuss the complaints concerning Mecklenburg. The Director agreed to
videotape confrontations between inmates and correctional officers at Mecklenburg, including all
cell extractions and the movement of disruptive inmates. For about six months, the inmate
complaint letters to the Prison Project stopped, but they soon began again and so the Prison
Project opened an investigation into conditions at Mecklenburg. As part ofthe investigation,
1
Prison Project staff reviewed the videotapes filmed by prison officials, which graphically
depicted an array of severe violations, including the inappropriate use of tear gas on inmates,
excessive physical brutality, taunting of mentally ill and suicidal inmates, and other shocking
behavior. The videotapes and other information we collected during our investigation
demonstrated widespread constitutional violations at Mecklenburg. The conditions at
Mecklenburg were some ofthe worst I had seen in my career.
3. The Prison Project attempted to initiate a dialogue with the Department of Corrections
over the conditions at Mecklenburg and possible reforms to rectify the situation, but there was a
change of leadership and the Department refused to discuss conditions at Mecklenburg further.
Therefore, in 1982, the Prison Project filed a class action civil rights lawsuit in the United States
Federal Court in the Eastern District of Virginia alleging that conditions at Mecklenburg,
including inadequately trained and unsupervised staff, deficient programming, inadequate
medical and psychiatric care, and a continuing atmosphere of violence and excessive force by
guards, fell "beneath the standards of human decency" and violated the United States and
Virginia Constitutions. The lawsuit, which was assigned to Judge Robert Merhige, Jr., also
alleged that prison officials were unreasonably restricting inmates' direct communication with
their attorneys.
4. I was the Prison Project's lead lawyer on the Brown v. London1 lawsuit and I was
actively involved in the case throughout. Over the course of its six year history, I spent many,
many hours inside Mecklenburg working with the inmates on this lawsuit. When I first traveled
to Mecklenburg in 1980 during our pre-litigation investigation, Joe Giarratano was highly
1
During its long history, the Brown v. London lawsuit had several captioned names, including Brown v. Murray
and Brown v. Hutto. For purposes of this affidavit, I will refer to it only as Brown v. London.
medicated, confused, nervous, and he almost never spoke. Joe was one ofthe named plaintiffs in
the lawsuit because our investigation showed that he was the victim of some ofthe most severe
abuse on death row. However, although Joe was present at some meetings with the inmates, for
the first few years that I spent time at Mecklenburg, Joe seemed drugged, very passive, and
almost unaware of what was going on around him.
5. Sometime in late 1982 or early 1983, during a visit to death row, I noticed a dramatic
change in Joe. He was clear-headed and alert and he started to participate in our discussions with
the inmates about the lawsuit. I began to spend a lot of time with Joe thereafter, talking about
conditions at Mecklenburg, his fellow inmates, and the lawsuit, but we also talked about many
other topics as well. I learned that Joe was reading almost anything he could get his hands on,
including case law, philosophy, religion, and literature. During our numerous conversations,
both in person and on the phone, and in correspondence from Joe, I realized that he was very
bright and articulate, he had a curious and open mind, and he possessed great insights about life
on death row and many other topics.
6. Joe quickly became a key source of information and a vital resource for me and the
other Prison Project lawyers litigating the Mecklenburg lawsuit. Joe regularly provided us with
accurate information about the Mecklenburg authorities' practices and procedures, and shared
with us information about the daily lives ofthe inmates on death row and the conditions under
which they existed. Joe also became the key liaison between the lawyers and the inmates. He
shared with us information about the other inmates' concerns, and explained our strategy and
updated the inmates on the case status. Remarkably, Joe acted as the old wise man on death row
even though he was among the youngest guys there. At times, Joe filled the role as an unofficial
counselor for both the inmates and the lawyers, tempering unrealistic inmate expectations and
warning the lawyers when we needed to be more aggressive about an issue because it was
particularly important to the inmates. In many ways, Joe was like an extra paralegal working
inside the prison on the case, although his strategic thinking was actually at the level of an
additional lawyer.
7. There were a number of evidentiary hearings during the Brown v. London case, and in
preparation, Joe advised us which inmates we could rely upon to be accurate and tmthful
witnesses. Joe's instincts were impeccable in this regard, and they greatly benefited our case.
Several years after we initiated the lawsuit, we reached a proposed settlement agreement with the
Department of Corrections that addressed most of our concerns about conditions at Mecklenburg.
Judge Merhige had to approve the proposed consent decree and we called Joe to testify as a key
witness at one ofthe hearings before Judge Merhige in support ofthe proposed consent decree.
Joe's careful and credible testimony played a critical role in Judge Merhige's approval ofthe
settlement.
8. As the lead counsel in the Brown v. London case, I got to know every inmate on
Virginia's death row between 1980 and at least 1990, many of them well, and Joe Giarratano
extremely well. I also have come to know hundreds of other inmates throughout my career, both
on and off of death row at prisons all across the country. I can say without any reservation that
Joe Giarratano is one ofthe two most cooperative, tmthful, and helpful inmate clients with
whom I have ever worked.2 He is uniquely mature, thoughtful, and intelligent. Over a short
period of time, I watched him grow from a confused, frightened, and withdrawn young man to
become a serious, articulate, strategic thinker. Joe has taught himself to become a superb legal
2
The other client was Wilbert Rideau, an inmate who had been on death row for murder at the Louisiana State
Penitentiary (better known as Angola Prison) and who later became the editor ofthe Angolite prison magazine,
who was released from prison in 2005.
analyst, an excellent writer and poet, and an extraordinarily productive person. I watched Joe
interact with prison staff many, many times, and Joe had a positive and cooperative relationship
with almost every one of them. He always attempted to correct perceived wrongs through
constructive action within our legal system. Although Joe benefited from the success ofthe
Brown v. London lawsuit, it was clear to me that Joe's prime motivation was to improve
conditions for his fellow inmates.
9. Joe is a remarkable individual, with great talents, and he has dedicated himself to
using those talents to help others. I am confident that if Joe is released from prison, he will
continue to make positive and significant contributions in what ever direction he pursues and
whatever causes he chooses to support.
Date
*
*~
EXHIBIT 22
Alternatives to Violence
inmates complete innovative course
teaching peaceful conflict resolution
3y Esther & Franklin Schmidt
SPECIAL TO THE STAR-EXPONENT
STAUNTON — On Jan. 9,
inmates, prison staff and peace
activists took part in an unusual
graduation ceremony at Augusta
Correctional Center. The event
was held in a large, yellow, cinder block room at the maximumsecurity facility near Staunton,
where nine inmates received certificates of completion of a
course tailed Alternatives to
Violence.
The program was the project
of inmates Joe Giarratano and
Kelly Stepp. with journalist and
Washington Post columnist
Coleman McCarthy providing
the syllabus. It is the first time a
program of this nature has been
offered in a Virginia prison.
The 10-week course had students reading essays from the
works of such peace activists u
Ghandi, Leo Tolstoy, Dorothy
Day, and Martin Luther King Jr.
They then wrote weekly essays
on how these writings impact
their own lives.
At graduation, inmates in
denim and a handful of guests
sat in plastic chairs listening intently to McCarthy tell them. "It
takes courage to reject the norms
of violence ... we are a violent
society ._ When the country
goes to war and uses bombers,
it's OK, it's patriotic, but when
poor people commit violent acts,
they go to prison."
He explained that his course
teaches conflict resolution without violence, and that conflicts
are a result of ignorance in lieu
of awareness; not good versus
eviL
During the ceremony, Assistant Warden F. Stuart Taylor recalled when Giarratano and
Stepp-first approached him with
FIMM U* COURSE Pigt 5
Photo Courtesy Franklin Seta
Organizers of the Alternatives To Violence course praise graduates. From left: In
mate Joe Giarratano, Augusta Correctional Center Chaplain Jim Reopke, and Wa
shlngton Post columnist Coleman McCarthy.
.
/
DVee,
#Course
••r-i-• *'•
iiWf'J; s.n*u up *^»tiu •"*
•rfijw-5** *»» <-v * *
. • I-,..
\
not unfrmlliar with Initiating new til 2004, wti dcllffiled with this
the Idea. |{< "fell In hit |ul that ihlr Idea* In the prison system.
grtduitlon Md said, "Nolhui| in
• u the tl|hl Lhlng" Io rupporL
While on Vlrglnla'a death tow, th* prison — of Ih* world — will
Taylor added it had real pride In Clatratano filed and won many change oveml|hl, bul w«'v* nude t
th* outcom* ol lb* ceutM snd ts- lawsuits sgalnat th* Department of good beginning."
marked thst before hlf Department Correcllona (hat resulted In changes
ol Correcllona eatcar ha had been • tn conditions on death row. lis alto
mirtlife counselor uid had mar- flled s cue on behalf of a fallow
ched with Martin Luther KJn| Jr.
death row Inmate Io which he conHe commented that a count In tended that Indigent and handicapnon-violent conflict resolution ped death row Inmates should be
might even be rpproprltu for cor- rntltled Io frea attorneys. The U.S.
Supreme Court hrsrd the esse on an
ractloni ofllceri and pr|*on tlatY.
Assistant Warden Tsylor, rlon| appeal riled by the Commonwealth
with Matlt Millard, operstlonsoftl- of Virginia.
t e n at Augusts, and prison chtptaln
Oltffttino't own cess bectmt
Jim Roepka, sponsored tha pto- ftmtlli/ to mott Virginians who
frau.
Isunched t grtas toots campaign lo
Llfca other large mulmum- ssvs him from th* electric enefr.
security prisons, Augusts Correc- Th* Culpeper Stsr-Bxponent joined
tional Center la plagued with over- othei* throughout the elite io «*•
crowding, too few jobs for Inmatea mtndlng * new Irlsl for Obrraiino.
Amon| the many locsl Indlvland racism. According to tha parti*
dpsnts, the court* beglnr to ad- dusl* tnd troups sellv* In that endreat the problem- caused by the s* deavor were former Rappahannock
County Democratic Committee
Issues.
fame* Ray Todd, one of the gra- heads, Douglas flsumgsrdner snd
dual**, i.ld. "1 didn't believe In Lee Olrd, snd over 100 members of
peace, l! w u tn alien concept to Culpcper's fWious Blood Catholic
. - m i , (Ttilt course) changed my way Church who petitioned Governor
Wilder to give Olarratarw a new
ofthlnkln|."
Another prisoner ttalcd, "I'v* trial.
been a violent person all of my life.
In February 1991, two day* bela recent wceki tome Incidents fore be waa to be electrocuted, and
arcs* In which I probably would In the fscs of first local then lists
have become violent, bul the things and national attention, Oovernor
I'v* learned through (hi* courts Wilder commuted that death senmad* ma talk back Initetd of throw lence, staling istttt he was not sui* of
apvnci."
Olarrstano't guilt Howover, WilBefore UM cotifte began, Olarta- der left It to Attorney Otnermj Maryuuvt and Stepp hid difficulty eon- Sue Terry to pant Otarraiano anvincbg torn* of the men to uk* other dey in court, which she repart Ipfced another paduat*, Otnlet fused lode.
O'Brlaav "Ihey promised ma parol*
Today, Jo* Oitrratana'* lawyer a
ted pern If I would {ct Involved. I cbntlnua to iavesitgat* th* drctttaHdn'i (cU tltntr, but I got t lot oul stance* of the crlm* that sent him to
etdutpregrtsa,"
prison in fa 1979. They snd OtarraMcCarthy remarked that It U rttto believe thai in* Information
drfflcult to be tn advocate of peace, ihey are uncovering will reauit in *
•'. <i>
especially In a prison •etttog. He retrial,
: i
plana to use this experience a* t
Kelly Stepp, who coordinated th*
.*
model fin future courtea la other course with Olarratlno, hts Just had. y. .•....,:.
Ifti
Vlr.
1
Virgin!* prison*. Ha hat already his parol* denied for the. WY*flilJ£
"••riisrwi*' • lirr,
used lb* program •* a eorreapon- time after serving J} year* htWrfdenc* eourat taken by over 100 In- Isry. He still haa hope* of reluming
mates Io prison* throughout lb* na- to hla family after his next parole
tfaa.
hearing,
After th* ceremony, Ihe gradustMcCarthy beads the Center for
Peace In Washington, D.G and (et- Ing prisoners sad guests went to th*
ches | simitar course al a local D.C chow hall, where McCarthy and
high school, Maryland University Russ Ford, director of Chaplains for
tnd la (he fill wilt begin ona *l DOC, addressed slmost 100 toGeorgetown University Law rn ties about the program.
Center.
Marie Deans, director of the VirThis, however, being s successful ginia Coalition of /sits snd Prisons,
maiden experience In the Virginia snd coordinator of Murder Victim*
prison system, hsa potential Families for Reconciliation, apok*
throughout the Mat*. The prison to the group, praising tha program.
Dean, tn ardent opponent of the
about In be bull! In Culpeper
County could Incorporate such a death penalty, pointed out thai her
progtsm that would even Include own experience as s member of s
members of the community. Dated murder victim's family has shown
on the experience at Augusts, the ber tfist non-violent resolution is
promt** of the course taking hold necessary to break the circle ot vioststewlde la not considered farfet- lence In our society.
ched.
Th* Rev, Jim Reopka, prison
This course Involved tha coop- chaplain and co-sponsor of the prot i t lion of a number of people tnd gram, said that sine* the initial
Institutions that frequently And course had been completed, he exthemselves,on opposing sides: The pect* upwards of SO requests bom
vM: . a-.., •„•. ...,prison administration, the chs- other Inmates to lata th*. court*
«hu> f, .-•(*(•«• up ajf'.lt!.
plslncy sisff, Inmatea and peace se- when It atartt up sgsln.
Th(«;».fl-.-h *.«>• V
livlsta.
Thlrly-fiv* yctr old Olarrslano,
»:'••• : r In f
lot Olsrrsltrw who, two vests who'* been in prison tine* 1979
ago, we* under sentence of death, I* and won't be eligible for parole unOmiUv.rf fiorn flat I
EXHIBIT 23
Program
Information
Handbook
AUGUSTA CORRECTIONAL CENTER
CRAIGSVILLE, VIRGINIA
CONFLICT RESOLUTION GUIDELINES
1. DEFINE WHAT THE CONFLICT 18 ABOUT. Studies have shown that In most
conflict* th* oombctaurts an butting ovtr different issue*. Orw may be enraged ovor whel
the other eakf or did yesterday, and th* other nury be seething over scnisythtng that Its* first
Mid or did three months ago.
2. I T 8 NOT YOU VERSUS ME, 1T8 YOU AND ME AGAINST THE PROBLEM. Th*
problem hi th* problem. Most people end nations, go into b**ttta> thinking, I'm right, you're
wrong; I'm good, you're evil; I'm smart, you're stupid; I'D win, you*! lose. By focusing on (tie
problem, and not th* person with th* problem, a climate of coopentUon, not compettron, is
enhanosd. Don't bring th* other party to their knees, bring them to the table.
3. U8E THE STRENGTH OF THE RELATIONSHIP. List th* retottcnshlp's many
shared concerns instead of it* one shared separation. Deal with the conflict from where the
conflict ts strongest, not weakest If you battle over the separation. It win widen. If similarities
are maximized, differences can be minimized.
4. LEARN TO USTEN ACTIVELY. Develop a sldfl for active listening, not passive
hearing. Conflicts escalate when the parties involved talk more then Hsteh, and then only
Djten as • tttTW-out for verbal rearming. An IrtteflectuaJ conversion is needed: Awn ''when I
taflt, paopie Aston," to "when I listen, people talk.''
6. DEVELOP A PHILOSOPHY OF FORGIVENESS. This attitude tr**e us to leav*
behind any r***ntrnent from pnsvfous conflicts. Forgiveness took* forward, v*ng*ano*
behind. RacondfiafJon is Impossible without lorgrVeness. Many paopie arm wMng to "bury th*
h«ch*f,''but tf»*y mart exa
0. CONCENTRATE ON YOUR OWN HEART. You canl get vtotonc* out of other
peopto unfil you get it out of your own soul, if you show a wtffirtgness to admit your own
fautfs,Kls»>eul*wfc*theotlwperty
7. FIND A PRIVATE PLACE TO RESOLVE YOUR OiFFERENCES. Don't try to resolve
th* conflict in front of other people, personal ego and prid* may hinder th* resolution. This Is
why armies sign p**c* treabes away from the war zona.
0. WORK ON YOUR CONFLICT RESOLUTION SKILLS BEFORE PROBLEMS
ESCALATE, if you put your' resolution skflr* to work whs* th* problem is Just a spark, you
may be aba* to avoid the blazing An* before it gats out of hand.
Do these guidelines always work? No. But they work much better than being
unknowing or unskilled. Strategies of peace can be mastered |ust at strategies of war.
. .and with far fewer. It eny, casualties.
BACKGROUND
Peace Studies/ ATV was formed in the Spring of 1992 by Joseph M.
Giarratano and R. Kelly Stepp to provide and promote a much needed
forum for prisoners who were sincere about challenging themselves to
become better human beings and citizens. The idea was to enlist the aid of
fellow prisoners and, through positive peer pressure, promote the study of
non-violent conflict resolution. To help them implement their ideas, Joe and
Kelly sought the assistance of Colman McCarthy, Founder of Hie Center
for Teaching Peace, and Marie Deans, Founder of Murder Victims Families
for Reconciliation. Utilizing materials provided by the Center a small band
of hardened convicts began studying and discussing the history, methods
and lifestyles of history's proven peace-makers.
This initial step led the convicts to the realization that only they could
change their deviant behavior. It was up to them to create a peaceful
environment in which to live. As more prisoners became interested in their
experiment the men began, under the concept of Restorative Justice, to
develop educational and therapeutic projects coupled with a philosophy of
expressing one's faith through active social work. Restorative Justice is a
contemporary concept that recognizes a spiritually guided method in the
healing of all human conflict, acknowledging the plight of both the victim
and offender.
The Peace Studies/ATV program provides a model for prison reform
that responds to the actual needs of everyone in the criminal justice
equation: the general community, the taxpayers, victims groups and the
prisoner. The operation of the program pulls the various elements of
successful corrections together into a viable, cohesive and holistic approach
to prison programming. This movement for enlightened prison reform can
lead the way to real and effective solutions to the state, national, and global
dilemmas of crime and incarceration.
The prisoners of the Peace Studies/ATV parent organization, upon
careful thought and discussion with Murder "Victims Families for Reconciliation (MVFRJ, have determined that the failure of the penal system—as
attested by the already high and continuously mounting recidivism rates-is
due to, and perpetuated by, a lack of several key elements:
* The need to provide prisoners with an intellectual grounding in the
methods, history and practice of non-violent conflict resolution.
• The need for a unified and concerted effort by all members of the
community to address the social conditions that are the major contributing factors to crime.
• The need for the increased participation of crime victims in the
incarceration process to provide the general community a heightened
awareness ofthe conditions contributing to crime and to provide
individual victims a greater opportunity for closure ofthe mental and
emotional wounds of victimization.
• The equally great need for prisoners to realistically face, the consequences of their actions by allowing offenders to see and share the effects
of crime from the perspective ofthe victim. Without this personalization,
prisoners are thwarted from taking direct responsibility for their crimes
and moving toward resocializatian.
• The need to create incentive for self-improvement at the grassroots level
by having prisoners involved in the organization, planning and
implementation of corrective measures,
• The need to have prisoners prepare for today's highly competitive
high-tech job market as an alternative to recidivism.
• The need from the outset for alt involved in this process of Restorative
Justice to acknowledge the shared dignity of human nature and respect
for every person as having been created in the image and likeness ofthe
Creator.
It is believed that prison programming incorporating the combined
strength of these elements wul result in greater motivation for true
corrections, a stronger sense of community between people, easier placement into the job market upon release ana a considerable decrease in the
recfdivism rate.
Hie Peace Studies, ATV program is unique in its holistic approach to
providing a forum that is conducive to actual rehabilitation. The approach
and goaJTis to provide training in marketable high-tech job skills while also
addressing the therapeutic needs of both the victim and offender. The
integration of these components is thought to be more thorough than the
current piecemeal approach to programming. The program is designed and
administered by prisoners with the support and technical expertise of the
general community.
The initial phase of the program focuses on providing prisoners with an
intellectual grounding in the methods, history and practice of peacemaking
and non-violent approaches to conflict resolution .The courses are theoretical
in nature but practical in application. The skills that Gandhi, King and
history's other proven peacemakers used in their struggles for justice can be
used DV all of us, whether individually in our personaluves or collectively in
our public lives. The second phase will focus on a victim/offender wockshop,
the third phase will involve job training in a high-tech workshop environment. Enrollment in one aspect is contingent on enrollment in the others.
All are seen as equally important.
INTRODUCTION
The first phase of Peace Studies, ATV has been ongoing since August of
1992 at the Augusta Correctional Center in Craigsville, Virginia. It has
proven to be an effective program. The initial enroflees were chosen from
among the prisoners with the most violent backgrounds in the institution.
Since the program's inception, not one of the participants has received an
incident report for engaging in violent activity. Warden Lonnie Saunders has
credited Peace Studies/ATV as being part of the reason that his institution
was awarded the honor of being the best run major institution in the
Commonwealth of Virginia during 1993.
Several hundred students from Peace Studies classes at the University
of Maryland, Georgetown University, and Chevy Chase Bethesda High
School nave attended graduation ceremonies at Augusta and heard dozens
of graduates speak of now Peace Studies has positively affected their lives
by offering them a choice that many had not even realized existed. One
graduate even spoke of being slapped in the face and walking away, an
action he would not have been strong enough to take even a tew months
earlier.
It is not uncommon for a non-member to approach a Peace Studies
member on the compound and ask how he can avoid a problem that may
seem unavoidable to him. In a place where the "convict code" rules, as it
always will in a prison environment, Peace Studies members have not
suffered a lack of respect among the general population; rather respect has
heen enhanced by membership in the group. Peace Studies/ATV constantly
maintains a large waiting list of men who want to enroll.
The Victim/Offender Workshop sessions center on exercises to develop
insight, discipline, character and responsibility for past deviant behavior.
The initial sessions of this workshop prepare prisoners to meet with victim's
groups to sensitize the prisoner to the wide-ranging effects of crime on the
victims and their families.
The high-tech workshops provide practical experience in various areas
(computer operations, video and audio production have been identified so
far), with the workshops organized in a modular design to be adaptable to
the changing job market and the changing needs of prisoners.
The overall program has minimum qualifications that include at least a
high school or GED education. A person can enter the initial phase
provided he is actively seeking a GED; however, he must have completed
the GED program before going on to phase two or three. The participant
must successfully complete all aspects of the training program in order to
graduate.
Within this project, based on the needs of the program and past
individual performance, training program graduates are invited to participate
in the training and administration of the next program cycle, making the
program self-perpetuating.
CURRENT PROJECTS
In response to inquiries from juvenile detention centers, we selected
nine topics for discussion on videotape which we believe could benefit
young people in trouble: The Reality of Prison Life. Peer Pressure and
Acceptance, Education, Racism, Substance Abuse, Violence, Self-discipline,
Responsibility (to community and to self), and Relationships/Communication.
The tapes have been completed with discussion of each topic by six
members of the phase one groups. Panelists rotate, so many different views
are expressed. Tapes are formatted into 30 minute segments with each tape
containing three or four topics. Special segments, such as an original sfcit
written and performed here at Augusta about what a prisoner will face when
he returns to society, are included.
Included with the videotapes is a small booklet, Peace Manual, we
created to serve as a companion work to the video for young people. There is
a chapter written about each of the topics that we are addressing on the
videotape.
The tapes have been sent to the Tidewater Detention Home along with
a questionnaire which will enable us to determine where we have hit nome
and what areas need to be covered that we have overlooked. Along with this
program, we offer any child who needs someone to talk to an opportunity to
enter into correspondence with a person whom our board of directors will
choose. (Once a person graduates from our program, they are not "out of
the program." If we have been successful, they become peacemakers for life
and we will keep them involved.j This pool of graduates is available when
correspondents are needed to write to the youngsters who need one-on-one
help.
We have begun developing experience in working with young people.
For example, after a recent program where Colman McCarthy brought
around one hundred of his high school and college students into the
institution, one of our Co-Presidents, Joe Giarratano, received a letter from
one of the young men who appeared in desperate need of help with hidden
feelings of rage. Joe gave copies of his letter to four members of our parent
group, who immediately wrote to the young man. He has now written return
letters and a dialog has been opened.
Also, at a recent meeting of the parent group, two of our sponsors,
Vonda Grant (Institutional Ombudsman) and Bill Tolley (Operations
Officer), brought in a 15 year-old boy who has been giving his parents and
teachers a lot of trouble. The last hour and a half of our meeting was
devoted to interaction with this boy. We plan to have him come back in the
future to discover if we did any good.
Peace Studies/ATV has received requests for information from the
Maryland prison system, the Green Bay (Wisconsin) Correctional Institution, the federal Department of Corrections, Virginia Detention Homes, and
individuals from Washington State, Pennsylvania, Rhode Island, New York,
North Dakota, California and New Jersey. These inquiries have come from
staff• personnel, volunteers and inmates. We recently had a visit from an
Ohio legislator who wished to learn more about the program,
A series of videotapes are also being produced for distribution to high
schools, colleges, and other prisons which illustrates how the Peace Studies
program works.
Peace Studies/ATV is also producing a book composed of selected
essays from our program. Also planned is a book composed of selected short
stones that will be written by members of our group.
Ve plan to offer the materials we produce to anyone who has need of
We
them at no charge. (If the recipient's funds allow, we would like to have
replacement tape cassettes sent to us when we send out a videotape;
however, that is a request, not a requirement. The only stipulation that we
make is that hone of our materials may be copied and sold.)
CURRENT PROGRAMS AVAILABLE WITHIN A.C.C.
1. Two "Phase I" classes. Students study and discuss alternatives to
violence, non-violent conflict resolution, substance abuse, anger control,
self-awareness, responsibility and other relevant topics for a period of 12
weeks (1-1/2 to 2 hours per week with 15 to 20 students per class). Each
participant is required to write 2 essays prior to completing the 12 week
course.
2. One advanced class available to "Phase I" graduates (as space
permits. Maximum of 20 students, not including organization board
members). This class meets weekly for 2 hours. The class studies a wider
ranee of relevant materials, writes essays, plans and organizes organizational
projects, participates in the production of the program video series, counsels
youthful offenders/potential offenders during group sessions and designs
program materials.
3. Basic training in computer operations, word processing, data
processing, desktop publishing and training in audio/visual productions.
Available only to advanced class members due to space, time and equipment
limitations.
4. In cell study course, a basic course in the study of alternatives to
violence based on the classroom curriculum. Participants are required to
write two essays based on the study materials within a 15 week period.
Advanced class members tutor the student on a one to one basis.
5. Tutor project for prisoners who cannot read or write. Advanced class
members tutor the student on a one to one basis. This project includes
tutoring in basic reading and writing skills.
SERVICESMIATERIALS AVAILABLE
1. Introductory Program Video
2. Video tape series designed for 10 to 17 year old violent offenders,
and other young adults
3. Video tape discussion series for adults. For use in prisons and schools
4. Manual of selected essays for use with or without the video tape
series
5. Cell/home correspondence course
6. Lending library (available only to A.C.C. prisoners, and affiliated
prison chapters)
7. Bimonthly newsletter, "The Mediator"
8. Desktop publishing services available to affiliated prison chapters,
non-profit organizations, community oriented organizations, A.C.C. based
treatment programs, D.C.E., prison staff and prisoner organizations. This
service can be provided only with prior approval from the A.C.C. Warden.
9. Inter-active meetings with young adults, youthful offenders, or
interested groups/schools. Prior approval must be obtained from the A.C.C.
Warden.
10. Seminars (available only to A.C.C. prisoners)
Requests for materials should be made through Mr. Lonnie Saunders,
Warden or Mr. F.S. Taylor, Assistant Warden for Programs;
Augusta Correctional Center
P.O. Box 1000
Craigsville, VA 24430 (Phone: 703-997-7000).
PROGRAM NOTE
In order for prisoners to receive the maximum benefit the program has
to offer, it is important that they take full responsibility for operating the
program. In order for the program to truly work, prisoners should enter it
voluntarily with no credit for parole or good-time. It has been our experience
that the reason the program is so successful is that the prisoners feel the
program belongs to tnem. It will succeed or fail based on the commitment of
the participants.
Formal classes should have staff sponsors present, not as teachers, but
as participants and/or as moderators when needed or requested by the class.
When feasible, funding for the program should come from the prisoners,
either through organizational dues, organizational fund-raisers within the
institution, church groups and/or foundation grants. AC.C. Peace Studies,
ATV can lend guidance in this area. We invite new prison groups to become
affiliated chapters with our parent organization.
Published by: Peace Studies/ATV
Designed by: PS/ATV
October 1994
EXHIBIT 24
Non-Viuhnct
Trogrssi
Sponsored by
MVFR
hM* nt usans
(Reprinted it? ifatrriasfon torn THE VOICE (Number 3, Fall 1994), the
oflfc-.;.ii rmtfsietitr of M vFH (Muru&r /ictlrf,s rurisihs for Reconciliation), one ot
the.ration's largest victim's tights Ofjaniz&iJortsj
For utmost (wo years MVFR has been sponsoring a revolutionary program in Augusta Correctional Center, one of Virginia's most
violent maximum security prisons.
The program, "Peace Studies/Aliej natives to Violence." was
developed hy Joe Gianatano and lits ccllrnale, Kelly Stepp. They
also serve At. iracliers and co-presidents of the program's board of
directors.
Violence is the way of life in prison, and men who are
non-violent are seen as soft and easy prey. Knowing that they had to
overcome this attitude, Giarratano and Stepp began the program
with twelve ot the prison's most violent prisoners.
Knowing as well that some prisoners only enter programs to
gain credit fur parole, they insisted that the program not count
toward parole and that ii remains self supporting and prisoner-run.
The program oilers two phases of participation. The first
phase ii a seiius of three-days a week classes for twelve weeks. During
these twelve weeks the iiicn read and discuss the writings of
peacemaker ;>u<.li as Cmrihi, Martin Father King, Tolstoy, and
Meiton. Then, using actual examples of prison life, they explore
ways of applying what they have learned. During this period
participants aie required to write two essays demonstrating what
they have gained from the readings and discussions. The essays are
evaluated by instructors at die Center for Teaching Peace, who
comment on the essays and suggest further readings.
Graduates of die classes can then participate in Phase H, which
consists of continuing classes and outreach projects.
Participants in Phase II have cieaied two videos designed 10
introduce the piugrarn and guide those interested in duplicating it
The first video demonstrates a version of the program adapted lor
10-17 year-old violent offenders. These videos, along with a manual
written by the graduates, are beginning to he user! in detention
centers across Virginia. The second video is designed loi u<«- in adult
prisons, high schools and colleges.
The graduates have also conducted two seminars for 150
high school, college, and law school students who have never been
in a prison before. A number of these "free-world" students have
written articles about how these seminars have erased their
preconceptions and taught tliein that, if these prisoners can learn
and practice non-violence, anyone and any sucieiy can as well. The
seminars also have prompted many ol the students to learn more
about non-violence and to get involved in peace work.
Since August 1992, when Giarnttano and Stepp presented the
proposal and request for permission to run the piogram to die
correction's staff, 1 have worked closely with them and the growing
number of graduates (60 as of May 15th). In seventeen years of
work in prisons across the South, 1 have never seen a mure positive
and effective program. The changes lhis program has brought about
in the participants and in the prison are truly revoluiiniiaiy.
The key to its success is that it is designed by and for
prisoners. They know die problems and the environment as none of
us (1 hope) ever will. As Miles 1 Inrtou taught Southern movement
participants, it is the people who have the problems who know best
how to solve them. The program's developers and prisoner board
are not content with looking successful. They are aiming for and
accomplishing genuine change in individuals ami in llirit environment.
Prisoners come from violent backgrounds and environments (a
recent study found over 95% of Ameiica's prisoners were seriously
abused and/or sexually molested as children). Most prisoners never
have been exposed to the ideas, theories or practices of nonviolence.
There are 250 prisoners on the waiting list for classes. In order
to be accepted into the classes, a prisoner inusi fill out an
application form designed to elicit motive and need. If the
application is accepted by the program's selection committee, four
members ofthe board interview the applicant. The board's priorities
for accepting applications are that they have been convicted of
particularly violent crimes, have extensive records of violence in die
prison, and are willing to change their behavior.
i* •' • HUMS*"
The success of the program is evaluated by tracking
disciplinary records. Most of the graduates had a long history of
disciplinary charges for assault and fighting right up to the time
they entered the program. In the almost two years the program has
been running, not one graduate has been charged.
In addition, non-program prisoners have begun coming to
graduates of the program to mediate disputes between individuals
and groups of prisoners. This mini-revolution in Augusta Correctional Center can grow and bring about true reform. Most
importandy, this program has real potential for lowering the rate of
recidivism (released prisoners committing new crimes).
As long as I have worked in prisons, the most frustrating aspect
has been that our prisons are nin only to punish, warehouse, and
dehumanize men, women, and children to the point that they are
more violent when they leave than they were when they entered
prison. Those few prisoners who are rehabilitated have changed on
dieir own and against incredible odds. Most prisoners can and will
change if they are given the opportunity. This program offers the
best opportunity I have seen.
The program also is a dramatic demonstration of wby we
oppose the death penalty. Joe Giarratano, who was and is the
pnmary architect and inspiration of the program, came within hours
of being executed in Virginia in February of 1991 before his death
sentence was commuted because of overwlielming evidence of
innocence.
MVFR
INACTION
Non- Violence
Program
Sponsored l>y
MVFR
i&zmts^
Murder Victim's Families for Reconciliation.
Studies/ATV
Post Office Rox 208
Atlantic, VA 23303-0208
for
PEACE STUDIES/ATV
Post Office Box 1000
Craigsville, VA 21430 1000
If you would She to see this and other programs corrtiriue at MVFR,
please make your tax deductible corrtribufions today. Thank you
from Peace Studies/ATV.
lessuplaas^in •.•!-
mesmmmmfmum
EXHIBIT 25
Center for
Teaching Peace
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WASHINGTON--One of the nation's most praised prisoner
education programs remains closed, states Colman .McCarthy,
director of the Center for Teaching Peace. In 1992,
the Center funded a prisoner-run academic program at the
Augusta Correctional Center, Craigsville, Va., to teach
alternatives to violence and conflict resolution skills.
With Warden Lonnie sounders and other August administrator
supporting and praising the semester-long courses, some 200
inmates were enrolled and over 300 more were on the waiting
list from 1992 to 1995. No parole credits were given for
taking the course.
The Augusta Program--called Peace Studies/Alternatives To
Violence—was also funded by the Campaign for Human
Development, an arm of the U.S. Catholic bishops. Joseph
Giarratano, held on death row from 1979 to 1991 ana whoscscheduled execution was hatted at the last minute by
then-Gov. L. Douglas Wilder, was the prisoner-Coordinator
of the program. Giarratano, an advisory board member of the
Center, was transferred late last year from Augusta to
the Buckingham Correctional Center, Dillwyn, Va.
During the years of the program's operation, regular
graduation ceremonies were held and diplomas awarded for the
men who completed the 14 week course. The .readings included
essays by Gandhi, Martin Luther King, Dorothy Day, Tolstoy,
Gene Sharp and a long list of peacemakers.
Since the program's inception, not one of the participants
received an incident report for engaging in violent activity.
Warden Saunders has credited Peace Studies ATV as being part
of the reason that hi9 prison was awarded the honor of being
the best run major institution in Virginia during 1993.
Efforts to find an explanation for the closing have been
fruitless, said McCarthy. "This was a model program," said
McCarthy. That it's been cancelled is a sign of the current
climate of repression that's sweeping not only Virginia
prisonc but the nation's, ,r
The Augusta program was an incorporated federal tax-exempt
non-profit. The Center has pledged to continue to press for
its reinstatement. Students from Georgetown University Law
Center, the University of Maryland, Trinity College and
Oethesda Chevy Chase High School regularly attended the
graduation ceremonies at the Augusta prison.
|VI Win ,%'.•« W t . W • tV*inAftip.s)i I* MM*-.
I.VI'V- IvJ
EXHIBIT 26
KEEPING FAITH, KEEPING ON
^
I he P r i s o n Y e n s ol foe ( i i u r r i i t ;tno
Colman McCarthy
Center far Teaching Peace
Reporter: Mr. Gsndbi, wb*t do jmtbtnktfWitsurnCivtliTaamf
GindH:/think it would he 0 goad ides.
•r >.
h •. •
.
•
.
••.'
'•'•'.
CONTENTS
Introduction
1
A Reflection
3
A Defender on Death Row
5
He's Guilty, Kill Him, Case Closed
7
A Reply from Gerald Zerkin: Facts Matter
9
The View from Death Row
11
The Resilient Mind on Death Row
13
More Than a Reasonable Doubt
15
A Prison Nonviolent Option
11
Committed to a Hard-Found Peace
19
Peace Within the Walk
23
Marie Deans: A Worker for Truth
29
Epilogue
30
Nonviolence offers no guarantees. But the curious thing,
is that people who do violence don H receive any guarantees
either. Statistics show that you have a better chance of
coming out alive in a nonviolent battle.
Joan Baez
INTRODUCTION
^ ^ B ugene Patterson, who stirred the
I wmM I waters for the Atlanta Constitution in
L a J the 1960s and who offered me the
hand of friendship when I truly needed it back
then, often tells fellow journalists that no story
is ever really finished. Follow-up reporting is
always essential.
So it has been with Joe Giarratano. His is an
unfolding story, one that began during his time
on Virginia's death row from 1978 to 1991 and
continues now in another ofthe state's growing
number of prisons.
anthologies. I have shown students the 1990 clip
from ABC News' 20/20 program and the
reporting of Lynn Sher, as well as an NBC News
segment in 1994 when Bob Abemethy reported
from the Augusta, VA, prison on Joe's teaching
a course on nonviolence. The students have
learned something about the realities and
absurdities ofthe criminal justice system, as
revealed in the details of Joe's case.
Many have acted on what they learned. On
one of our field trips to death row to be given a
seminar by Joe, a student from Bethesda-Chevy
Chase High School was astonished to learn that
many ofthe condemned men had no postThese pages carry the columns and articles I
was privileged to write about Joe and his case, as conviction lawyers. More than a few were
illiterate. Apparently this realization lingered. In
they ran in the Washington Post and, in one
a transforming way, this student—until then she
instance, The Progressive. A piece is here, too,
was little more than floating through school—
about Marie Deans, a saver of lives, digger for
began taking her studies seriously. She went on
facts and a jolter ofthe complacent The
to the University of Michigan to graduate
prefatory words by Joe Giarratano first ran in
surnma cum laude, while volunteering as a
the newsletter from my Center for Teaching
reading tutor in a state prison. After graduation,
Peace, on whose advisory board he serves.
she joined Teach for America and taught middle
school to low-income students in Los Angeles.
Any money earned from this collection will
She applied to law school and was accepted at
be for Joe to use any way he wishes, and I hope
several ofthe top ones, the gateways to Wall
enough lucre comes in for him to splurge!
street and K Street law. Instead, she chose the
In addition to writing about this resilient and City University of New York, the ideal place to
satisfy her goal of becoming a public interest
resourceful citizen—now in his mid-40s and
entering his third decade of imprisonment for a lawyer.
crime it is highly doubtful he committed—I
have told Joe's story every semester for the past
Many others who have known Joe—as a
dozen years in my classes at Georgetown
person of conscience and courage, not as a
University Law Center, the University of
stashed-away and numbered inmate—have
Maryland, Catholic University, Bethesda-Chevy stories of his positive influence on their lives
Chase High School and the Oak Hill, MD,
and beliefs.
prison. Thousands of students have read articles
written by Joe, from ones in the Yale Law
In a recent letter—characteristically hopeful
Review to his essays in prison literature
and upbeat, even though written from Red
*
Onion, Virginia's newest soul-deadening
supermax prison—Joe displayed, still again, why
he remains in sole control of his inner life
regardless of the oppressions done to his outer
life: "Teach, guide, share, uplift, raise up—I
suppose this is all we can do. I've no problem
against butting my head against windmills! I
don't even get dizzy from it anymore.
"Nonviolence is one ofthe most powerful
forces of change available to us. It truly is the
path that requires heart and steadfastness. If
that were not true then we would not have the
level of violence we see, feel and experience in
our world. But nonviolence is so much more on
the personal level for the individual. It is a
personal journey, a personal odyssey, that can
truly help one find the way. Those who discover
this truly do live well and die easy. The truth is
never really hidden from us. The ultimate secret
is, indeed, the most open one. Balance."
As Joe's story continues to unfold, it is fitting
that the Virginians for Alternatives to the Death
Penalty has established the Joseph M.
Giarratano Award for Truth in Action, and
equally fitting that the first recipients are Marie
Deans and Gerald Zerkin. They have stuck with
Joe through thick and thick. The awards, given
on May 1, 1999 at a gathering of friends of Joe
and advocates of restorative justice who came to
Charlottesville, VA, go to two lovers ofthe long
shot. Like Joe Giarratano, they are keeping
faith and keeping on.
Colman McCarthy
Washington, DC
April 9,1999
*
A REFLECTION
by Joseph M. Giarratano
H
ften when I talk with folks in my
neighborhood about alternatives to
violence and living nonviolently, I
am confronted with arguments justifying
violence as a legitimate response in some
situations. I'm not surprised by such arguments
given that my 'neighborhood' is prison and my
residence is death row.
Prisons are more often than not violent
places. And the death row process is, whether
consciously or unconsciously, designed to
dehumanize the individual: make the person
faceless and powerless. The process is fertile
ground for a cycle of violence that traps many,
guard and prisoner alike. The resulting violence
is both physical and psychological.
Over the years, through self-reflection, Fve
learned that the cycle can be broken and even
reversed. Fve come to know that I do not have
to contribute to that process or the resulting
violence. What I saw going on around me and
happening to me was irrational and selfdestructive.
Eventually L like all human beings, will die. But
for now I am very much alive and, until death
touches me, I feel the pain, anger, frustration,
despair and grief at the loss of those close to me;
and I feel the fear of my own predetermined
death. But here on the row, where life goes on,
death is never distant Here life and death are
constantly one. Both are ever present; while there
are times when death appears distant, it is only an
illusion: at any time an announcer on TV or radio
may remind you of your death, or that of a friend.
You may read about your death in the daily
newspaper, or a letter from a court clerk, or when
the guards say "Let's go..."
*
It's not always easy to live nonviolently in this
environment, but I manage—by constantly
recognizing the individual humanness of every
person around me and by treating them with
respect and a gentle spirit. Be it a fellow
prisoner or potential executioner standing
before me, I always look into their eyes. What I
see there, without
fail, is my own
"In the faces of men and reflection. In
allowing that
women I see God and in my reflection to guide
all my actions, it
o-wn face in the glass." exposes the
process for what it
Walt Whitman is: self-destructive.
When we allow it,
that very personal experience will carry over to
all our relationships. It has become a way of life
for me and plays an active part in all I do.
That reflection is powerful. By recognizing
the human-ness of others we can change our
way of life, and break the cycle of violence.
That recognition gives us die power to not
become participants in all the many forms of
violence and dehumanizing influences that are
active in our world today. I live in a world that is
still violent, but it is less violent than it was
yesterday.
Call me naive, but I have come to believe that
the majority of incarcerated offenders truly
want to change their negative behavior and
learn to be responsible human beings, Yet,
having spent the past fourteen years warehoused
in prison, I have come to understand that most
criminal offenders do not know how to change
their behavior. Thus they remain trapped in a
cycle that is detrimental to us all. Our current
public policies, our criminal justice system, our
departments of correction, building more
prisons and the expansion ofthe death penalty,
notwithstanding, has done nothing to change
that reality.
challenging ourselves to respect human
differences. It means not giving up on social
change. And it means expecting better things
from our government, from our schools, from
our courts—from every institution on which we
are tempted to give up, to accept things as they
are, and to pass on the violence.
To help make the changes needed in our lives,
we must have our traditional behavior and
thinking changed with new information and
experiences. We need a chance to talk with and
respond to other people, time to reflect, and
more time to assimilate.
Unlearning violence is a life-long process and
we, the Augusta Correctional Center
Antiviolence Project, are learning it is never too
late to begin. We are learning to help ourselves
and each other. And we are learning to become
less dependent on the system to change us.
Here at Augusta Correctional Center, we, the
prisoners, have created a forum for ourselves
where we can begin to learn how to bring about
that change in our lives. We may come from
different backgrounds, but our struggles to
retain our dignity have a lot in common.
Therein lies our common ground.
In this country, we have entered a period in
which our problems are the kinds of problems
that the government is ill-equipped to solve.
Some ofthe most serious problems today are
those not in the physical or institutional
infrastructure but in our moral and behavioral
infrastructure. Our obsession with government
has itself become a serious problem. It
monopolizes our attention and usurps our
energies at a time when our attention and
energy need to be refocused on our families, our
communities and our hearts.
In our seminars, we are learning that the
central alternative to violence is effective
communication. In our sharing, we are coming
to know that we can avoid violence by learning
to express our needs, wants, hopes and desires
clearly and caringly. We are learning to listen to
other people and hear what they have to say.
Respecting them as well as ourselves is part of
that learning process. We are all connected. Yet
the pursuit of peace is sabotaged by the wars in
our world, in our homes, in our neighborhoods,
in our prisons, in our relationships. Therefore,
by taking a personal stand against the cycle of
violence, we are taking a stand for ourselves.
Taking a stand means taking care of ourselves,
acknowledging our differences, our strengths,
and our ability to care. It means challenging
anyone who says it is natural, inevitable,
enjoyable, or otherwise human for us to be
abusive. It means encouraging each other—
including our children—male and female—to
be strong, gende and different. It means
^ff
August 1993
A D E F E N D E R ON DEATH ROW
H
mong jailhouse lawyers, Joseph
Giarratano, a Virginia death-row
inmate, has a rare practice. He is
using the law to try to save other people's hides,
not his own. Civil litigation that Giarratano
initiated in August 1985 on behalf of a cellblock
friend had oral arguments before the Supreme
Court on March 22, with a ruling expected later
this year.
The case of Edward Murray, director, Virginia
Department of Corrections v. Joseph Giarratano is a
story rich with faith in justice and love ofthe
weak, two ideals not routinely seen, much less
honored, on America's 37 death rows.
Giarratano is 32 and in his 10th year at the
Mecklenburg, VA, state prison following a
murder conviction in 1979. It's another story for
another time that his guilt has been questioned
by the Virginia Coalition on Jails and Prisons, a
public-interest group whose director, Marie
Deans, after poring over trial records, became
convinced that Giarratano is innocent and
deserves a new trial.
Giarratano is before the Supreme Court out
of friendship for Earl Washington, an
illiterate and penniless inmate with an I Q of
69. If the citizens of Virginia had had their
death wish, Washington would have been
electrocuted on Sept. 5, 1985. T h a t was the
execution date set five weeks earlier. It was at
that time also that the Virginia Circuit Court
denied Washington's request to be given a
lawyer for help in pursuing a habeas corpus
petition.
In August 1985 Washington was transferred
from Mecklenburg to a small holding cell in the
*
basement ofthe state penitentiary in Richmond,
where Virginia does its killing. Two weeks
before Washington was to be electrocuted,
Giarratano filed a civil suit (pro se—without
attorney) in federal court He alleged that
Virginia was denying the constitutional rights of
indigent death-row inmates by not providing
them lawyers.
In addition to filing the suit, Giarratano
wrote to U.S. District Judge Robert R.
Merhige. He told the judge that the Virginia
Coalition on Jails and Prisons had appealed to
more than 50 lawyers to help Washington but
that all had said no. Moved by Giarratano's
letter, Merhige himself looked for a lawyer. He
found none.
Giarratano, living among men who ended up
on death row because their preconviction
lawyers were often inept, unmotivated and
poorly paid, knew that post-conviction lawyers
tended to be skilled and dedicated, if you had
the increasingly rare luck to find one.
After a two-day trial, Giarratano's suit won in
District Court The state appealed and won 2 to
I in the U.S. 4th Circuit Court of Appeals.
Giarratano appealed to the full court and won 6
to 4. The state then appealed to the Supreme
Court.
Giarratano was not on hand, for sure, to
argue the case last month. That was handled by
Gerald Zerltin, a prominent Richmond civil
liberties attorney who believes his state's
practice is unconstitutional. Although absent,
Giarratano's passions for justice were not This
was his suit, the inmates at Mecklenburg his
friends.
Giarratano wrote recendy of what it is like to
be Earl Washington: "Picture yourself in this
situation. You've been convicted of capital
murder and sentenced to death. You are
indigent, functionally illiterate and mildly
retarded. Your court-appointed lawyer tells you
that you have the right to appeal your
conviction and sentence but that he will no
longer represent you.... You've been moved
into the death house. Your only choice is for
you to represent yourself. You must file
something with the court or be executed in less
than 14 days. You have the right to file a
petition for certiorari or a petition for habeas
corpus and a motion for a stay of execution. But
before you can file you must learn to read,
write, overcome your retardation, obtain your
trial transcript, understand the science of law,
learn how to conduct legal research, analyze
vast amounts of case law, formulate your issues,
learn all rules, understand civil procedure,
constitutional law, criminal law and acquire the
art of legal writing. You must do all of this and
much more in less than 14 days in order to
exercise your right to appeal."
Those who monitor death-row cases report
that more than half of all inmates win relief in
post-conviction appeals. In 10 capital
punishment cases in 1988, the Supreme Court
ruled seven times in favor of death-row inmates.
Ofthe 2,150 dozens currendy sentenced to
die—the highest number in U.S. history—more
than half are awaiting results from their first
postconviction appeal. Nearly all are poor.
Nearly all have lawyers. Virginia is an
exception. So also is Joseph Giarratano. He has
already made legal history. Better, he may soon
make legal reform.
April 15, 1989
V&
HE'S GUILTY, KILL H I M ,
CASE CLOSED
H
olman McCarthy has long been fond
of portraying America's death row
inmates as martyrs who deserve our
sympathy. In so doing, Mr. McCarthy usually
takes a snide tone toward those readers who
may disagree with his narrow point of view,
while playing fast and loose with the facts.
However, Mr. McCarthy's deification of
Virginia death row inmate Joseph Giarratano
goes too far ["A Defender on Death Row," oped, April 15]. If the Post is going to publish this
type of "reporting," readers are entided to some
background information—the kind Mr.
McCarthy doesn't include in his commentaries.
Mr. McCarthy makes a passing reference to Mr.
Giarratano's murder conviction in 1979, but
doesn't mention his victims. Then he writes that
Mr. Giarratano is probably innocent and
deserving a new trial.
Mr. McCarthy should start reading the
newspaper that publishes his columns. The Part
reported excerpts of Mr. Giarratano's confession
to authorities in an article on capital
punishment published on June 13,1982. Mr.
Giarratano admitted that he raped and
strangled a 15-year old girl, then waited for the
girl's mother to return home from work. He
confessed that he then stabbed her to death
because he realized she would know it was he
who had murdered her daughter.
Mr. Giarratano is not under sentence of
death because his lawyers were "inept,
unmotivated and poorly paid," as Mr.
McCarthy alleges. He is on death row because
he raped and murdered a teen-age girl and
later killed the girl's mother so she could not
identify him as the culprit.
*
Mr. McCarthy describes Mr. Giarratano's case
as "a story rich with faith in justice and love of
the weak, two ideals not routinely seen, much
less honored, on America's 37 death rows." If
this is so, why has Mr. Giarratano been on
death row for a decade? Were Virginia's
criminal justice system as unfair as Mr.
xMcCarthy implies, Mr. Giarratano would have
been executed years ago. Instead, Mr.
Giarratano continues filing his legal briefs with
the full cooperation of correctional
administrators. Further, Mr. Giarratano knows
that his own execution, if it comes at all, is
probably years away.
I am in favor of capital punishment; Mr.
McCarthy is not Fine. There are always two
sides to a controversial issue. But when Mr.
McCarthy represents a cold-blooded murderer
as an altruistic saint while consciously or
carelessly omitting important facts, The Post's
readers are being denied their right to know the
whole story.
Scott M Wallace
Chevy Chase, MD
May 3,1989
Note: This ran as a letter to the editor ofthe
Washington Post followed by a reply from Gerald
ZerkinonMay 13, 1989.
1 can remember visiting prisons as a judge... 1 always
knew that I was seeing only what I was supposed to see,
and I didn't expect to stumble upon some defect in the
system that would merit my attention... Now that 1 am
a prisoner, and judges are being shown the facility that
imprisons me, I realize bow deluded 1 was in those years
by my own vanity and by the escorts who so carefully
planned my itinerary... The only thing accomplished by
these tours (by judges) is to create yet another group of
propagandists who spread the word that life is prison is
pretty good or, far worse for the future treatment of
prisoners, life in prison is too good.
SolWachtler
After the Madness: A Judge's Own Prison Memoir
A REPLY FROM GERALD ZERKIN:
FACTS M A T T E R
n his letter [May 3] responding to
Colman McCarthy's op-ed column
[April 15] about Virginia death-row
inmate Joseph Giarratano, Scott Wallace's
zeal for the death penalty causes him to
ignore the real purpose of that column, which
was to explore the humanity of Mr.
Giarratano. Unfortunately, unlike Mr.
McCarthy, Mr. Wallace, in order to maintain
his simplistic view of death-row inmates as
subhumans, ignores the extraordinary history
of Mr. Giarratano while he has been on death
row.
No evidence corroborates the confessions.
The spermatozoa found in the 15-year-old
victim was not identified as Mr. Giarratano's. A
single hair among 10 found near the victim was
consistent with that of Mr. Giarratano, but it
was not identified as his, nor was it even tested
against the victim's own hair.
Mr. Wallace focuses solely on Mr.
Giarratano's guilt for the crimes that put him on
death row. However, it is Mr. Wallace, not Mr.
McCarthy, who is "playing fast and loose with
the facts," and in doing so he has the company
ofthe Commonwealth of Virginia. I agree with
Mr. Wallace that Post readers are "entided to
some background information" on Mr.
Giarratano, but Mr. Wallace's misinformation
hardly satisfies that need.
The commonwealth also introduced evidence
of the blood type of one ofthe victims, which
matched that of two drops of blood on one of
Mr. Giarratano's boots, but the blood type
introduced was that ofthe victim who didn't
bleed. No one bothered to type the blood ofthe
victim who died from a severed artery.
In one sense, Mr. Wallace understates the
case against Mr. Giarratano: there wasn't one
confession, there were five. Unfortunately,
they are inconsistent both internally and with
each other, even as to such basic matters as
who was killed and what the motive was. The
state's own psychiatrist explained these
inconsistencies as a product of a mental
condition that caused Mr. Giarratano to
"confabulate," or make up the story, because
he had no actual recollection. Only the
confession given after the police fed him the
"facts" had any relationship to the evidence,
and even that confession is not consistent
with all the physical evidence.
No explanation was ever given for all the
hairs that weren't consistent with Mr.
Giarratano. In any event the presence of a
single hair is hardly significant given the fact
that Mr. Giarratano lived in the apartment
The commonwealth also introduced a crimescene photo with bloody shoe prints, creating
the impression that Mr. Giarratano's boots
created those prints. We now know, however,
that his boots did not make them because the
state's forensic expert has stated under oath that
the tests she performed eliminated that
possibility. In addition, the officer who arrested
Mr. Giarratano says there was no blood on his
person or clothing.
That is the sum total of the evidence
submitted to corroborate Mr. Giarratano's
confabulated confessions. However, a few more
items bear mentioning. Two autopsy reports
were prepared as to the strangulation victim,
the first concluding strangulation by ligature,
the second allowing for manual strangulation.
vpf
In all other respects the reports were
identical. The only event intervening between
the two reports was the last confession, in which
Mr. Giarratano said he had used his hands. In
fact, we now know from an independent
pathologist that the strangulation was not
manual.
It is impossible to cover all the factual
discrepancies and omissions in Mr. Giarratano's
case in a letter such as this. We have filed a 30page motion in federal court detailing these
matters. The attorney general's response did not
even attempt to dispute any of those matters,
relying instead on procedural arguments. The
attorney general has also refused to allow us to
see the entire forensic file or the physical
evidence not introduced at trial.
Thus, it is not Mr. McCarthy who has
"carelessly omitt[ed] important facts and
deprived The Parti- readers of their right to
know the whole story." Rather it is the attorney
general of Virginia. But then that shouldn't
matter to persons of Mr. Wallace's convictions,
for whom it is no doubt better to kill someone
for these crimes, even if it is the wrong person,
than to kill no one at all.
Gerald T. Zerlrin
Richmond, VA
May 13, 1989
Jlf
T H E V I E W FROM DEATH ROW
've had offers to go to law school—
the University of Virginia and the
University of Vermont," says Joseph
Giarratano, a citizen who has been confined to
death row for 10 years in the Mecklenburg state
prison.
Giarratano, 32, convicted of killing two
Norfolk women in February, 1979, is a fullchested, black-haired man of medium height
He is seated this afternoon in the prison's
visiting room speaking to 30 students about the
death penalty and his own trial and sentence,
which are now being questioned by several
Virginia newspapers, a coalition of national
criminal-justice groups and the Catholic bishop
of Richmond.
The students were from my classes on
nonviolence at Georgetown University Law
Center and the University of Maryland. I
brought them to this medium-security prison in
southern Virginia to tour death row and meet
Giarratano. It was a chance to learn about—as
they never could from only books or reports—
the madness of government-sanctioned killing.
Forty-one Virginians await electric-chair
executions.
For about two hours in a seminar setting,
Giarratano, restrained in waist and hand chains
proved himself a masterly teacher. He ranged
from the complexities of habeas corpus to case
law to a discussion of how he ended up a
condemned man.
None ofthe students had ever been in a
prison death house, nor had they ever met a
caged man whose life may be taken within
months. They are like most Americans who
react impassively when crimebusters call for
more and bigger prisons and Chief Justice
Rehnquist demands more and faster executions.
Until this afternoon, when they had traveled
four hours south of Washington to a rural
remoteness, no student had much reflected on
the premeditated horror of death row. No
person there had been as cruelly calculating to
his victim as the government now was.
Confinement in a cage under 24-hour
surveillance and reminding him in every way
possible that one day he would be led away to
be killed.
Giarratano explained the reasons for the
invitations to study law at the University of
Virginia and the University of Vermont should
he win his freedom. He corresponds with law
professors at both schools, helping them
research legal questions. They, and many
others, regard him as a genuine legal scholar.
With modesty, Giarratano, told the
students of the legal briefs he has written in
the past seven years on behalf of Mecklenburg
prisoners, efforts that led to decisions giving
Virginia prisoners rights to receive visits from
reporters, confidential mail and phone
communication with lawyers. In a civil case
that he wrote on behalf of a fellow death-row
inmate, Giarratano won district and full
appellate-court decisions that ruled the state
was required to provide post-conviction legal
help. Last July, the Supreme Court, in one of
six decisions that went against prisoners,
overturned the ruling 5-4.
Before meeting Giarratano, several students
were familiar with his lawyers' effort to win a
^f
second trial based on new evidence. They knew
that a swell of publicity is occurring. Charlie
Rose of CBS News was here last June
interviewing for two Nightwatch segments, ABC
News' 20/20, lagging, is coming to the prison to
film for a report in a few weeks. European
television crews have been here. Amnesty
International, which opposes the death penalty
in all countries, is monitoring the case.
Last month, the Richmond Times Dispatch,
finally waking to a local story that national and
international news organizations were
reporting, detailed the doubts about
Giarratano's guilt and the discrepancies in the
hurried half-day trial he received in 1979.
Virginia newspapers have been forceful in
calling for a new trial.
The Daily Progress in Charlottesville has run
two editorials in recent months, including one
on Sept. 22 rebuking Virginia's attorney
general, Mary Sue Terry, for refusing to order a
new trial. Terry, the paper said, "is legally
correct in her decision. Virginia law does not
require retrial involving fresh evidence in cases
such as Giarratano's. She is legally correct—but
not morally right She could—and should—go
beyond the minimal requirements ofthe law to
permit a new trial.... Terry, however, apparendy
is afraid—afraid to reverse her own long-held
position, afraid of appearing to be weak on a
law-and-order issue in the coming election. She
is not afraid, it seems, to risk the death of a
possibly innocent man, sacrificed for her own
ego and political ambitions."
In the seminar at Mecklenburg, one of the
Georgetown law students told Giarratano of
mentioning to a schoolmate that he was coming
to the prison as a course field trip: "That
figures,' my friend said, 'your teacher's just
trying to turn you against the death penalty.'"
Sony, friend. The teacher is up to nothing as
devilish as that I'm in the information, not the
^f
conversion, business. When I was in the prison
last May to interview Giarratano, I picked up
some fresh facts from him on why killing is
wrong. I came back with some students so they
could hear, see, feel—and decide—for
themselves.
Mecklenburg, VA
November 11, 1989
T H E R E S I L I E N T M I N D O N DEATH ROW
S
leak and frustrating news for judges,
prosecutors and politicians of
Virginia: Joseph Giarratano has yet
to be dehumanized. His spirit remains
unbroken, his faith in justice unyielding. T h e
3 3-year-old death-row prisoner, caged for 11
years in the Mecklenburg State Prison in southcentral Virginia, is resisting every premeditated
effort ofthe state to kill his mind before it lolls
his body.
Giarratano was convicted in 1979 after
turning himself in to police and giving five
confessions to two murders in Norfolk.
Evidence did no corroborate the confessions,
which Giarratano made in a drug-induced
psychotic state. Evidence not presented to the
defense at the trial—which the state had at the
time—still has not been given to Giarratano's
lawyers by Virginia's attorney general T h e
1979 trial lasted half a day, less than one-tenth
the time Zsa Zsa Gabor was afforded in a
Beverly Hills court for slapping a cop.
Death-row cagings at Mecklenburg, along
with the others in America's 36 state prisons,
have one purpose: Strip the prisoners of selfworth and deny them links to their humanity. In
the remote world of death row—a prison within
a prison—only a few of the condemned have the
inner resources to resist becoming emotional
zombies. Thorazine and other sedatives,
including the narcotic of television in the cells,
are available to prisoners for whom numbing
out is the sole resurrection from living death.
Giarratano and 41 others on Mecklenburg's
death row are under round-the-clock
surveillance. They are denied work and
educational classes. They are confined to a
^f
colorless world of steel and concrete in which
the most intellectually stimulating decision left
to free will is when to defecate.
This is my third visit with Giarratano in the
past year. ABC News' 20/20 reported the case on
Jan. 12, as did a New York Times page 1 story on
March 5 and the Philadelphia Inquirer on April
8. A story is scheduled for People magazine later
this month. Reporters from the European press,
which is endlessly trying fathom America's lust
for executions, are regulars at Mecklenburg.
The Los Angeles Tvmes asked Giarratano to write
an op-ed piece, which ran March 25.
His story is getting into the national and
international media: the unfairness ofthe trial,
the stonewalling of Virginia officials to grant a
new trial, his turning into a legal scholar who
has written successful briefs on behalf of friends
on the row.
As on my last visit I brought along 30 high
school and college students, as a way of helping
them shape their views on capital punishment
independent of politicians and Supreme Court
justices who advocate state killings. Midway
through our hour-long seminar, in which
Giarratano, his arms constricted by chains,
ranged from citations of case law to his teaching
literacy to fellow inmates, a student asked how
he had changed from a near-hopeless and
suicidal drug addict in 1979 to a self-educated
legal scholar.
It was a person and a book, he said. Marie
Deans, director ofthe Virginia Coalition on
Jails and Prisons in Richmond, befriended him
over a period of three years in the early 1980s:
"She inspired me to battle for my rights." Deans
also encouraged Giarratano to read: "I started
with a book by Dietrich Bonhoeffer, Letters and
Papers From Prison. The prison [here] wouldn't
let me have the book, saying it was subversive.
But I eventually got it. A. friend smuggled it in.
Starting then, I began focusing on living a
nonviolent life, based on my experiences in this
prison. There was an us-against-them attitude
here. The violence made no sense. It wasn't
helping the guards. There had to be another
solution. Through that process, I came to see
the guards as human beings.
What a student asked, is subversive in such
books as Bonhoeffer's? "Those kinds of books
allow us to think for ourselves." Giarratano
replied. "We begin to see ourselves as human
beings and them [guards] as human beings.... In
the execution process, by the time they shave
our heads, they consider us dead. Everything is
designed to kill us before we actually sit in the
chair."
No date has been set for Giarratano's
execution. Courts have consistently denied his
requests to present witnesses and evidence to
establish his innocence. A petition to the
Supreme Court, due May 24, will request a
review ofthe case.
Before leaving Washington for the prison, I
took a small houseplant that I wanted Giarratano
to have in his celL A guard at the frisking desk said
no. Its just a flowering plant, I argued. And
Giarratano's just an inmate, was the reply.
I doubt if the guard believed it Officials at
Mecklenburg well know—as would my students
after their unforgettable afternoon conversation
with Giarratano—that this is a resilient citizen,
and no faceless inmate. He is not free but he is
freed up.
Boydton, VA
May 13, 1990
v&
MORE T H A N A REASONABLE DOUBT
H
memoes in the Virginia State Prison
include a cooling room. On the
basement level, it is a few yards from
the death chamber that holds Virginia's bestfunctioning piece of judicial furniture, its
electric chair. After people are killed—247 since
1908—their bodies are scorchingfy hot from
taking 2,500 volts of electricity in as many
surges as needed. In the cooling room, corpses
have their temperatures lowered for handling
and shipping.
Into this scene of modern barbarity, a
shackled and cuffed Joseph Giarratano was led
the other morning for an interview. It was a
makeshift arrangement. The prison, a hellhole
built before the Civil War and recendy closed
except for the death chamber, no longer has a
functioning visitors' room. The cooling room is
all.
Giarratano is the 34-year-old former drug
addict scheduled to be electrocuted Feb. 22
for the 1979 apartment-house knifing of Toni
Kline of Norfolk, VA, and the rape and
strangling of her 15-year-old daughter,
Michelle.
Few modern death-penalty cases have
received as much national and international
attention. Coverage has ranged from page one
stories in major U. S. dailies to in-depth
segments on network television. Giarratano,
who came into death row as a semiliterate
suicidal loner and loser, has transformed himself
into a constitutional scholar who has written
successful briefs on behalf of fellow prisoners.
His articles have run in disparate forums, from
the Los Angeles Times op-ed page to the current
Yale Law Review.
This was my fourth visit with Giarratano in
the past 22 months. I'm one of a large and
growing number of people who have
scrutinized the record of this case pre- and
post-conviction procedures, transcripts,
appeals—and concluded that Giarratano is
either innocent or deserves a new trial.
Evidence obtained in the past three years that
raises doubts, according to Giarratano's lawyer,
includes the following. Bloody shoe prints found
in the apartment did not match Giarratano's
boots, which had no blood on the soles; the
stabbing and strangling were done by a righthanded person, while Giarratano is left-handed;
hair found on the rape victim did not match
Giarratano's; the autopsy report was changed
after Giarratano's confession to corroborate the
confession. Attempts to introduce this evidence in
appeal have been rejected by state and federal
courts due to procedural rules.
Giarratano's conviction, after a three-hour
trial in which he was represented by an
inexperienced court-appointed lawyer, turned
on his confessions. Five were given—each
inconsistent with the others and each made
while in a delusional state. A state psychiatrist
has testified that the confessions were made
up—"confabulated"—as the result of
Giarratano's psychotic mental state.
What's known about the crime is that on
Feb. 4,1979, Giarratano, blacked out from
alcohol and drugs, awoke from a living-room
sofa to find the two bodies, one bloodied from
a slit throat, the other strangled. Assuming that
he must have killed the two, Giarratano fled by
bus to Florida. There, overcome with guilt and
remorse, he turned himself in.
^f
In the cooling room of the state prison, I
asked Giarratano the question that most
perplexes people who have yet to take sides on
this case: If it's so certain that you're innocent
or deserving of a new trial, why haven't the
courts, after 10 years of considering your wellcrafted appeals, said so? He answered: "It isn't
that the courts weren't convinced one way or
the other, but 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 ofthe 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.
He told of meeting Douglas Wilder a few years
ago, when the then state senator, outspoken in
his opposition to executions, toured death row
to publicize his views. "Conditions at the prison
were pretty bad," Giarratano recalled, "and
Wilder came to the row to see for himself.
When he left, he turned to us and said, 'Don't
give up hope.'"
Giarratano hasn't. Much of the world now
looks on to see if Wilder is concerned with
procedures or justice.
Gerald Zerkin, Giarratano's Richmond
attorney, says that Virginia has the nation's
narrowest and most unresponsive appeal system:
"In recent years, our state courts have reviewed
about 50 Cases in post-conviction appeals and
have not overturned one death sentence.
Nationally, the overturn rate is more than 40
percent. Instead of its being seen as someone's
fife is at stake and therefore we need more due
process, in Virginia it's the opposite: because we
need to kill them, we should give them less due
process."
Several thousand letters have come into the
office of Virginia Gov. L. Douglas Wilder,
including two from me and with no courtesy of
a reply for either. Wilder, once an opponent of
capital punishment but now an advocate, has
authority to grant a conditional pardon that
would permit a new trial based on new evidence
and doubts about Giarratano's guilt Nationally,
23 innocent people have been executed between
1900 and 1985.
At interview's end, Giarratano said he was
hopeful of winning his freedom. Why?, I asked.
> f t ^
Richmond, VA
February 16, 1991
A PRISON NONVIOLENT OPTION
n the roomy visitors' hall ofthe
Augusta Correctional Center—a
maximum-security prison three
hours southwest of Washington—the assistant
warden came to the microphone to offer a few
positive thoughts. Twelve inmates, along with
two prison chaplains, some social workers, and a
few reporters from local papers, were the
audience gathered on folding chairs.
A first was happening: the graduation
ceremony for a group of prisoners who had
successfully completed an academic course on
nonviolence. Instead of diplomas, certificates of
peacemaking were awarded. The men had read
and discussed about forty essays by the
Reverend Martin Luther King, Jr., Gandhi,
Gene Sharp, and other theorists on nonviolent
conflict resolution. They wrote papers that were
sent to a teacher in Chicago, who gave her
comments and evaluations. E S. Taylor HI, the
assistant warden and a former military officer
who had been a marriage counselor before
getting into prison administration,
congratulated the men for their achievement
He said this kind of education was worthwhile
and hoped it would continue for others.
No one in the audience was as pleased as the
organizer ofthe course and its discussion leader,
Joseph Giarratano. You may recall the name.
Joe Giarratano is supposed to be dead. In the
months before his scheduled execution in
February 1991, in Virginia's electric chair,
enough people were convinced of his innocence
that seven thousand letters had been sent to
Governor L. Douglas Wilder asking for
clemency. Amnesty International, the European
Parliament and more than a dozen members of
Congress examined the weak and conflicting
evidence for his murder conviction in 1979 and
argued that an innocent man could be executed.
With fewer than a hundred hours left,
Wilder, saying the decision was "complex but
not difficult," agreed. He commuted the death
sentence.
For most.of the last two years, Giarratano has
been caged at the Augusta prison, sentenced to
life with a chance at parole in 2004. Wilder's
commutation turned out to be semi-justice, a
half measure that canceled the death penalty
without allowing either a new trial or freedom.
Wilder never answered this question: If the
claims of innocence were strong enough to raise
doubts about an execution, why were they too
weak to justify a retrial?
The governor, overly circumspect, took the
advice of the attorney general, Mary Sue Terry,
who said that the decision for a new trial rested
with her. Receiving petitions both before and
after the governor's clemency, Terry has refused
to reexamine the case because she is convinced
Giarratano has had his day in court
Actually, it was half a day—a trial of less
than four hours and in which no evidence
corroborated the defendant's confabulated
confessions. Virginia is one ofthe few states
that forbids new evidence to be offered
twentyone days after the trial. Giarratano's
postconviction lawyers meticulously
presented the kind of facts that persuaded the
governor to intercede. For Wilder, granting
clemency was an ethical issue. For Terry,
refusing a retrial was procedural. In the clash,
procedure won out.
-fM
Giarratano, an eighth-grade dropout whose
self-education in prison enabled him to write
articles for law reviews, including Yale's, is
keeping his petition for retrial before both the
governor and attorney general. As long as it's
ignored, Virginia's judicial system remains one
ofthe nation's most backward.
At the graduation ceremony the other day,
Giarratano put his case aside. In remarks to the
gathering, he spoke as a caring teacher,
probably the first many ofthe student prisoners
ever had. They said as much when their turn
came for speaking. By reputation, these were
among the toughest men in the prison. For
them to study peacemaking—an unofficial
program, so it isn't usable on parole appeals—
sends a message throughout the cellblocks: The
true toughness is in using nonviolence, not
violence.
Among the guests was Marie Deans ofthe
Virginia Coalition on Jails and Prisons, a selfless
woman who has befriended hundreds ofthe
state's inmates. "This is the most positive event
Fve seen in all my years of working in the
Virginia prison system," she said. "These were
big, tough guys who took this course. It's a
credit to Joe and all of them that they organized
and ran their own program."
This is the kind of rehabilitation seen only
occasionally in prisons. Now it's on view in
Virginia. Its governor and attorney general
should take a look.
Craigsville, VA
January 30, 1993
vtef
C O M M I T T E D T O A H A R D - F O U N D PEACE
Chevy Chase High School, the University of
Maryland and Georgetown University Law
Center—had been to a prison before. I learned
later that many of the prisoners we met hadn't
had a visitor in years, if ever. It was a fresh
moment all around.
o help educate my students about the
politics of crime and punishment,
and with many in Congress venting
for more prisons and longer sentences as debate
on the crime bill mercifully winds down for a
vote, I took them to meet some experts in
criminality: prisoners.
Our host at Augusta was Joseph Giarratano,
whom I came to know in the mid-1980s when
writing about his case. In February 1991, he
came within two days of being executed in
Virginia's electric chair in Richmond.
We traveled to the Augusta Correctional
Center, a maximum security Virginia state prison
in Craigsville, three hours southwest of
Washington. I have taken student groups into
prisons before, but this time our visit would last
about four hours and include the sharing of
supper followed by a seminar for a free exchange
of ideas About 90 of us were on hand*—50
students, several parents, 30 prisoners and a few
administrators, including the warden—all
gathering in a roomy visitors center.
An international outcry, including protests
from Amnesty International and Bishop Walter
Sullivan of Richmond, who regularly visits the
state's prisons, persuaded former governor L.
Douglas Wilder to call off the execution. The
evidence was weak that Giarratano was guilty of
the 1979 murders of two Norfolk women for
which he had been convicted in a four-hour
trial.
My educational goal for this field trip was to
move a few students beyond the stereotypical
image of criminals as either born losers or
subhuman demons who deserve to rot in cages,
and the longer the better. That was the message
sent by tough-talkers in Congress throughout
the crime bill debate last year, rancor born
partly from frustration that a 20-year binge of
prison construction has not lowered the violent
crime rate and partly to cast a juridical dragnet
that will catch and criminalize anyone
undesirable. The United States is the world's
most prison-happy nation, with 426 caged men
and women per 100,000 citizens. In some
European nations it is one-twelfth that Per
capita spending on state prisons increased 400
percent, 12-fold from 1969 to 1989.
Instead of receiving his freedom or a new
trial—the attorney general in 1991, Mary Sue
Terry, who had decisional power, said that guilt
had been established and that was that—
Giarratano was taken off death row and sent to
the Augusta prison.
Over the years, I had seen Giarratano in
enough settings—from his deathrow cell to the
seminars on criminal justice he gave to my
students—to realize that he had a talent for
expressing and explaining ideas. When
interviewing him three days before his
scheduled execution in Richmond, I suggested
that if he lived he ought to think about
teaching. He was as well read as any of my law
school students. I had been encouraging him to
Behind the numbers, as always, are human
beings. None of my students—from Bethesda-
^
^
study the theories and history of nonviolence
because in violent America nothing is more
needed than teachers of peace.
When Giarratano was dispatched to Augusta,
I worked with him and prison officials to create
an inmate-run course on alternatives to
violence. Since August 1992, Giarratano has
been teaching it meeting weekly in 12 weeklong courses with about 15 men participating.
Certificates of peacemaking are awarded to
those who complete the course and its
requirements. Academically it ranges from the
essays of Gandhi and Tolstoy to Martin Luther
King and Dorothy Day. T h e papers the men
write are sent to a high school teacher in
Chicago who reads, evaluates and returns them.
Approximately 300 prisoners are on the waiting
list for the course.
It was to one ofthe end-of-class graduations
to which Giarratano invited my students and
me.
After clearing security—the customary
friskings and emptying of pockets—we were led,
five at a time, through three gates, a couple of
barbed-wire fences and into the visitors center.
In papers the students wrote for me about the
prison experience, reactions ranged from
amazement to empathy. Kathleen Phelps of
Georgetown Law recalled her initial fright She
was in one of the first groups of five to enter the
visitors room: "Suddenly we were the strangers.
Several ofthe men welcomed us warmly. I
glanced at my friend Susan and could tell that
she had the same thoughts I did. 'These are
mass murderers. Drug dealers. Rapists. My
God, they are so friendly and so unashamed.' At
this thought I became ashamed. I was so
suspicious, looking into each inmate's face as it I
could read there of his crime.... As the evening
wore on, I got up my courage to talk to several
men. I wanted to hear what they had to say; I
wondered about living behind walls."
Jennifer Gurney, a senior at Bethesda-Chevy
Chase High School, wrote to the prisoners after
the trip: "I am grateful to have had the chance
to meet all of you. Congratulations on
graduating from the course on nonviolence.
Before I visited, I was ignorant to the kind of
life all of you have to lead, separated from
society. I believe that many of us, including
myself, take our lives for granted. I also think
that the prison system in this country needs
drastic reform. Prisons should not be places of
violence but of teaching and learning.... I hope
all of you will continue to study the theories of
nonviolence. I know I will."
During the seminar and question-and-answer
session afterward, prisoners told of fights, rapes
and feuds that often prevailed within their walls.
More memorably, they spoke also ofthe books
they were reading and of starting their lives
over. One inmate, a man in his forties who had
spent more of his life in prison than o u t
including six years in the notorious hell hole
federal pen in Marion, IL, said in a letter to the
students that talking with them helped him feel
like a human being again. He found it "hard to
fall asleep that night but when I did it was one
of the most peaceful nights I've had in many
years."
Before the trip, the only request of etiquette I
made of my students was that they not ask
prisoners what they were in for. Crime was a
part of their past, not necessarily their present
or future. Then also, we don't meet people on
the outside and ask right off how they messed
up their lives.
Men who had killed, raped, stolen, forged or
destroyed had a few moments that afternoon
and evening to be accepted for what they still
are: citizens capable of comebacks, of starting
over, of receiving forgiveness and mercy.
Nearly all the students grasped this
intuitively. Ariana Grebe of B-CC wrote to
A^
I've met few who have. One exception is
Giarratano and the men: "Thank you so much
Judge Abner Mikva, chief of the U.S. Court of
for the lovely evening. It was the first time I
Appeals for the District of Columbia. In a
had gone to a prison and I must admit that I
recent letter to me, he wrote:
felt a little apprehensive. But once I entered
the visiting room and saw everyone mingling,
I felt more at ease. I'm so impressed by the
"One ofthe reasons that prisons are such
commitment you men have made to find
failing public institutions is that few people ever
inner peace and deal with your violent
see the inside of them. I take my clerks to
environment. I can't imagine the struggles
Lorton or the D.C. jail during their year with
you must endure and the opposition you
me so that they can see close up what it means
meet. You are deserving of my admiration,
to have defendants committed to those
and everyone else's. No matter what you may
places.... I would like to see our schools arrange
have done in your past, what you are doing
field trips to our prisons—for all kinds of
now is what counts. One of the men who
reasons, but especially to make our citizenry
spoke when he received his certificate struck a aware of what can go wrong with our criminal
chord with me—about looking within your
justice system."
own heart and how it's the hardest thing you
can do. I agree and I understand, I recently
When school officials do arrange field trips,
looked within myself as well."
they should invite along some members ofthe
Senate and House. Behind bars, a hearing or
two on the crime bill would be apt. Prisons are
In the Augusta community, Joe Giarratano
also the scene of a crime: wasteful and
is respected for his organizational skills. His
inhumane caging.
persistence assured the creation of the
alternative to violence course. In a brief
welcoming speech, he said that being in
February 1, 1994
prison didn't automatically mean losing the
freedom to think imaginatively: "In spite of
our confinement and the violence that
surrounds us, we have come to know that we
are not helpless: just as we have contributed
to the problem, we just as easily contribute to
the solutions. ... We all have a role to play in
reducing violence."
My students left the prison seeing it overall as
an inhumane dead end, with the men inside
having only the slightest chance of resisting in
spirit the institutional negativity of prison. The
course on nonviolence was one of these chances.
Many ofthe papers the students wrote were
expressions of shock that society—supposedly
rational legislators, lawyers, judges and juries—
could put people away for 10, 20 and 30 years in
numbing banality and expect them to come out
whole. A few wondered whether politicians or
judges ever visit prisons.
"ifff
It is absolutely insane the amount of money we spend on
corrections. What we have been doing is not right. But
it's very difficult for politicians, and I am me of them,
to say we have been wrong and that we 've go to revisit,
revise and restructure the whole system.
L. Douglas Wilder
Aug. 4,1992
PEACE W I T H I N T H E WALLS
^ ^ B efore dawn one morning in early
• • • September 1996, guards at the
LaBaTaH Augusta Correctional Center in
Craigsville, Virginia, went to the cell of Joseph
Giarratano and roused him from sleep. Within
minutes, the prisoner, who had done hard time
in the Virginia penal system since 1979, was
handcuffed, shackled, and escorted out ofthe
maximum-security pen. He had not been told of
his destination.
It was a state prison in Draper, Utah. The
tniards secredy moved Giarratano cross-country
in a state-owned plane often used to fly Virginia
Governor George Allen on political jaunts.
Upon arrival, Giarratano was caged in the
supermax control unit—a prison within a
prison, where inmates leave their cells for fewer
than three hours a week.
Giarratano's trip to Utah was part of a
prisoner swap. On September 9, 1996, the
Deseret News quoted a Utah prison official:
"[Virginia] called us and said, 'We've got this
politically hot inmate. We would like to get rid
of him." The two prisons worked out an
exchange.
I can't verify the precise temperature of the
"political heat" But I can offer a few facts and
recollections about Joseph Giarratano, the
human being. These impressions differ from
the court judgment that placed him on
Virginia's death row from 1979 to 1991. They
also differ from the beliefs that prompted the
state's attorney general to refuse to grant a
new trial after the governor granted a lastminute stay of execution based on evidence
that raised serious doubt about Giarratano's
guilt.
I met Giarratano in 1988 when interviewing
him for a column in the Washington Post. It was
the first of eight visits I would make in the
following years. Except for the initial interview,
I took along between sixty and 100 of my lawschool, college, and high-school students on
every trip. In seminars and sometimes over
shared meals, Giarratano was a masterful
teacher on the intricacies of criminal justice. In
1995, he became the first person on death row
ever to write a brief—on behalf of an illiterate
fellow inmate who had no post-conviction
lawyer—that was argued before the Supreme
Court. In lower courts, he had won several
victories on behalf of prisoners. A self-educated
writer, his articles on death-penalty law
appeared in such journals as the Yale Law
Review.
From transcripts and other information
provided by Marie Deans ofthe Virginia
Coalition on Jails and Prisons, and Gerald
Zerkin, a Richmond attorney specializing in
civil liberties who was Giarratano's attorney for
much of the appeals process, I learned that the
state's case against Giarratano was glaringly
weak. He was convicted in early 1979 after
giving five confessions to the murders of Toni
Kline and her teenage daughter Michele in a
Norfolk rooming house. The trial lasted four
hours. Evidence did not corroborate the
confessions. According to the state's
psychiatrist, the confessions were inconsistent
and given to police during a drug-induced
psychotic episode.
Giarratano, an eighth-grade dropout, a
scallop fisherman, and a habitual drug abuser
then in his early twenties, had no history of
violence. When, he learned ofthe deaths of his
^ff
housemates and could not remember where
he'd been on the night of February 3,1979, he
feared he had killed them. At a bus station in
Florida, he saw a cop and turned himself in,
saying he had just killed two people, was guilty,
and wanted to be punished. The state of
Virginia obliged.
That might have been the end ofthe story,
except for Marie Deans. After her mother-inlaw was slain in 1972 by an escaped prisoner,
Deans founded Murder Victims' Families for
Reconciliation, a national group that has since
grown to several thousand members.
Since 1983, as director ofthe Virginia
Coalition on Jails and Prisons, she has also
worked with hundreds of prisoners: recruiting
pro-bono lawyers for the unrepresented, raking
through trial records for procedural errors or
suppressed evidence, accompanying men to
their executions, and—perhaps the most
grueling labor of all—waking the comatose
mainstream media to the abuses within the
American injustice system. Unlike Sister Helen
Prejean, who offers spiritual solace to the
condemned, Deans goes further by doing the
tedious and unglamorous legal research for
prisoners who may have been wrongly
convicted.
She did that for Giarratano. First she had
to persuade him that he might not have killed
the Klines. Then she spent several years
marshaling facts that convinced her—and
eventually the governor—that the state had
condemned the wrong man. Bloody footprints
found in the apartment did not match
Giarratano's. The stabbing and strangulation
were done by a right-handed person.
Giarratano is left-handed and has a
neurologically impaired right arm. Hairs
found on the raped teenager did not match
Giarratano's. Nor did the sperm. The
confessions, with cops creating scenarios and
feeding Giarratano answers, did not square
with each other and were not consistent with
the physical evidence.
Between 1988 and early 1991, the
Giarratano case received massive media
attention. What Deans had discovered, and
Zerkin was delivering to the courts, was too
compelling to ignore. ABC News, 20/20, the
New York Times, the Los Angeles Times, and the
Washington Post ran long and detailed
accounts. More than twenty dailies in
Virginia—the nation's leading executioner
since colonial times—editorialized that
Giarratano's guilt was dubious and that he
deserved a new trial. Amnesty International,
which is chary about risking its credibility,
erected billboards in Virginia asking if an
innocent man was about to be killed. James J.
Kilpatrick, a conservative and longtime
cheerleader for capital punishment, wrote
columns asking the same question.
Confronted with all this, Governor L.
Douglas Wilder yielded. He commuted the
death sentence to life, with a chance for parole
in 2004.
Why not a full pardon and freedom, which
forty-eight innocent men got when they were
released from death rows between 1972 and
1933, according to the House Judicial
Committee? Rule 1.1 ofthe Supreme Court of
Virginia states that death-row inmates must
present evidence of their innocence within
twenty-one days of conviction. After that no
pardon.
On visits, I came to know Giarratano as a
serious reader with a strong bent for the
literature of nonviolence. I began sending
him books by Gandhi, King, Dorothy Day,
and others. In one conversation, I suggested
that if he were ever released from death row,
he should consider becoming a teacher,
perhaps a teacher of nonviolence. Not a bad
idea, he said.
&f
A workable idea, it turned out After being
transferred to the state prison in Craigsville, he
approached an assistant warden about the
possibility of starting a twelve-week academic
course called Alternatives to Violence. It would
be inmate-run, but sponsored and monitored by
prison officials. It would not count for parole
points.
Because of his influence among fellow
prisoners—having legally fought for them in
courts and having triumphed over death row
himself—Giarratano was able to recruit the
toughest cons to take his course. He wanted to
send a message throughout the prison, he told
ine: The mean guys, the former monsters, are
now studying Gandhi, Merton, Tolstoy and the
others. Nonviolence, he said, is for tough
people, the genuinely tough who are brave
enough to settle things without using fists or
guns.
about nonviolence when I was a kid, I probably
wouldn't be in this place today."
Word spread about the program. In August
1993, Corrections Today, the monthly magazine
that covers the prison industry, ran a story titled
"Inmates Learn Practical Ideas From Lofty
Ideals." Requests for information about the
courses poured in from more than a dozen
states and Australia. After a second graduation
in September, my center awarded a $500 grant
to expand Giarratano's program to include
videos, a correspondence course, and outreach
to other prisons. With the warden's approval,
Giarratano applied to the IRS for a 501(c)(3)
tax-exempt status for the program now formally
called Peace Studies-Alternatives to Violence.
The application was approved.
By this time, I had invited Giarratano to be
on the advisory board of the Center for
Teaching Peace, a nonprofit I began in 1985
that helps high schools, churches, civic
groups, and prisons run courses in peace
studies and nonviolent conflict resolution.
Initially, my center supplied texts for the
student-prisoners at Craigsville, the same
books on nonviolence that I use for my
courses at Georgetown Law and the
University of Maryland honors program.
With prison officials overseeing the twiceweekly classes. Giarratano began leading the
course in the summer of 1992.
In 1994, some 300 inmates were on the
waiting list to take the course. My center
awarded a $5,000 grant. At one of the
graduation ceremonies, Marie Deans, whose
Murder Victims' Families for Reconciliation cosponsored the program, told the audience of
150: "The success ofthe program is evaluated
by tracking the disciplinary records. Most ofthe
graduates had a long history of disciplinary
charges for assault or fighting right up to the
time they entered the program. In the almost
two years the program has been running, not
one graduate has been charged." And, she
added, "Nonprogram prisoners have begun
coming to graduates of the program to mediate
disputes between individuals and groups of
prisoners."
In early January of the following year, the first
graduation ceremony took place. Prison officials
attended. So did some of the prisoners' family
members. I brought a group of students. Marie
Deans was the commencement speaker.
Graduates received peace diplomas and a
chance to say something to the audience about
the course. One by one, they came forward to
say, in one way or another: "If I had known
When taking student groups to the
graduations, the only request I made was that
they not ask prisoners why they had gone to
prison. Crime was a part of their past, not
necessarily their present or future. We don't
meet people on the outside and ask right off
how they messed up their lives. Men who had
killed, raped, stolen, or destroyed had a few
moments at the ceremonies to be accepted as
^f
citizens capable of comebacks, of asking
forgiveness and receiving mercy.
After one ofthe trips, a senior in my highschool class at Bethesda-Chevy Chase High
School wrote to the men: "I am grateful to have
had the chance to meet all of you.
Congratulations on graduating from the course
on nonviolence. Before I visited, I was ignorant
to the kind of life all of you have to lead,
separated from society. I believe that many of
us, including myself, take our lives for granted. I
also think that the prison system in this country
needs drastic reform. Prisons should not be
places of violence but of teaching and
learning.... I hope all of you will continue to
study the theories of nonviolence. I know I
will.''
At one ofthe graduations in late 1994, a
prisoner warned that the program's visibility
might be its undoing. Governor Allen had
installed a new director of prisons, a minion
hell-bent on carrying out his master's policies of
infrequent parole, longer sentences, gutted
counseling and education programs, and severe
punishment Nationally, this was three-strikesyou're-out time, with such politicians as Senator
Phil Gramm calling America's prisons "Holiday
Inns."
The visibility had indeed increased. NBC
Nightly News aired a favorable story. Bob
Abernethy did a report from the prison in
which he interviewed Giarratano and others in
the course. More funds came in, including a
$3,000 grant from the Campaign for Human
Development sponsored by the U.S. Catholic
Conference.
In the summer of 1995, the Peace Studies
program was terminated, with Giarratano sent
to another prison in the state system. He
returned to Craigsville in July 1996 only to be
shipped out under the cover of darkness to Utah
two months later.
"The program was a front for criminal
activity which was masterminded by
Giarratano," says David Boddns, a spokesperson
for the Virginia Department of Corrections.
Funds were "used fraudulendy for inmates'"
gains. The department's internal investigation
also charged that inmates in the program were
using drugs. The prison closed the peacestudies course "to cut off the head of a snake."
When I asked if Giarratano was prosecuted
on the charges, Boddns said "no." Did he get to
answer the charges? "No." May I see the
department's report ofthe investigation? "No,
those are closed files."
I reminded Botkins that I was a hinder of the
program and that my involvement went a bit
beyond offering good wishes. Why didn't the
Department of Corrections ever notify me that
it was terminating the program or give me its
reasons for doing so? "I apologize on behalf of
the department" Botkins answered.
On the question of why Giarratano was
abruptly dispatched to the hole in Utah, the
spokesman explained: "He's a high-profile
inmate." Meaning? "A lot of other inmates resent
him. He was in danger. For bis safety, we felt it
best to put him in a state where he had no
enemies." For Marie Deans and Gerald Zerlrin,
this is low-grade hokum. Deans believes that
Virginia officials, resentful of Giarratano's legal
skills and his successful educational work at
Craigsville, "are trying to break him—destroy his
spirit because he's effective. They know how to
deal with violent prisoners but not with one who is
nonviolent and who stands up for prisoners'
rights. In the peace-studies course, Joe had the
audacity to teach prisoners that they could change
their behavior and have some control over their
environment even in the Virginia system run by a
zealot for control and punishment"
For Zerkin, the roughing-up of Giarratano
continues the pattern: "We've never seen any
^pf
documentation from the Department of
Corrections for the allegations of fraud or drug
use. They never charged Joe, either criminally
or institutionally. It appears to me that politics,
rather than any misbehavior, was the basis for
transferring him out of Virginia."
In the first week of April, Giarratano was
moved again—from Utah to an Illinois state
prison in Joliet Botkins said that he had
become "problematic" for Utah. He declined to
define the term.
racial separation and tensions. Something that
wasn't really an issue here in past years. And the
system here is responding by building more and
more control units and twisting the thumb
screws!
"I personally use my time here to work on
self-realization. And as a natural result, the
more I realize self, the more I sympathize with
the problems and hardships of those around me.
So I feel a personal responsibility to do all I
can."
I have an idea what kind of alleged problems For now, the "problematic" Joe Giarratano is
Giarratano was creating in the Utah pen. In
stashed in Joliet. It's likely he will continue to
February, one of its inmates wrote to me: "Dear displease prison officials. The trouble is, he sees
Colman: I have been talking with Joe himself and other prisoners as human beings.
Giarratano since he came here to Utah. One of
the main topics has been bettering the situation
July 1997
for teaching prisoners to promote positive
growth within themselves. Of course he has told
me about the program Peace StudiesAlternatives to Violence he had going in
Virginia and I am very interested in starting the
same program here.
"I have written to you with his
encouragement to ask for any assistance you
might be able to offer me in this endeavor. Like
any materials to better prepare myself to bring a
comprehensive proposal to the administrators
here. There are a few caring individuals I have
worked with in the past eleven years of my
incarceration here in Utah. And I am quite sure
it can all come together.
"I have this year to really prepare this all,
because I get out of this Control Unit then and
will have direct access to all the facilities here.
However, I will do all I can to get the ball
rolling from here.
"The violence level in this system has been
rising fast in the past three to four years. This is
due to the increase of the younger gang
offenders. This has also caused an epidemic of
*
/ was 8 years-old when my father was murdered. It is
almost impossible to describe the pain of losing a parent
to a senseless murder. And in the aftermath, it is similarly
impossible to quiet the confusion: uWhy him? Why this?
Why me?" But even as a child one thing was clear to
me; I didn't want the killer, in turn, to be killed. I
remember lying in bed and praying, uPlease, God. Please
don 7 take his life, too." / saw nothing that could be
accomplished in the loss of one life being answered with
the loss of another. And I knew, far too vividly, the
anguish that would spread through another family—
another set of parents, children, brothers and sisters
thrown into grief.
I work now in the field of international human rights.
That means I am constantly forced to recall the evil of
murder. It also means this: I am frequently privileged to
witness responses of courage and of faith on the part of
people who counter violence with nonviolence.
Kerry Kennedy Cuomo
A Punishment in Search of a Crime
M A R I E D E A N S : A WORKER FOR T R U T H
H
t the 1972 scene of her mother-inlaw's murder, Marie Deans recalls
being comforted by a well-meaning
policeman friend. "'Don't worry, Marie,' he told
me, 'We'll get the bastard and fry him.'" No,
you won't Deans said to herself about the
escaped murderer who killed her husband's
mother. One death was enough. For Deans, an
opponent of capital punishment the homicide
of a family member was not a moment to alter
her belief in the sanctity of life. The murderer,
who killed Deans's mother-in-law in
Charleston, South Carolina, had been on the
lam from a prison in Maine, a state with no
death penalty. South Carolina prosecutors,
eager to revive executions, sought to extradite
the killer from Maine where he had been
returned. Deans and her husband promised to
work against the extradition and the likely death
penalty to follow. They succeeded.
Not long after, Deans founded Murder
Victims' Families for Reconciliation. Her work
with the organization—more than a hundred
families currently are members—defies the
stereotype of murder victims' families as prodeath penalty and supporters of politicians who
call for more executions.
"He had a family, too," Deans says ofthe man
who killed her mother-inlaw. "If he was
executed, it would be another murder. It would
be worse in a way, because he would be put on
death row and die family would have been told
every day for ten years—or eight years or six
years or however long it takes—that he was
going to be killed. I think that's worse."
Deans expanded her work in 1983 to become
director ofthe Virginia Coalition on Jails and
Prisons, a Richmond public-interest group
affiliated with the Southern Coalition on Jails
and Prisons in Nashville. She has worked with
more than four hundred men and women on
death row and with their families. Deans
recruits lawyers, agitates in the courts and in
wardens' offices for medical and educational
programs, and regularly visits to offer forgotten
prisoners the warmth and love few ever had on
the way to becoming killers.
It's on the last point—How do murderers get
that way?—that Deans offers an opinion that only
a regular visitor to death rows could form. In her
office last week, she said: "I have yet to find a case
where there wasn't a red flag thrown up years
ago—in grammar school or somewhere—where a
kid said, Tm in trouble, help me.' He gave us die
message loud and clear and we didn't pay any
attention. And he ended up, years later, going
down and down and killing someone. Let me tell
you something. I resent the hell out of that as a
member of a murder victim's family... These
governors, these prosecutors, Ronald Reagan and
George Bush all getting up and saying, T care
about rictims, I want the death penalty.' If they
cared about victims, they would have taken care of
that victimized kid when he was six years old and
prevented a homicide later."
Deans, who is forty-nine and now a single
parent is from a monied Old South Charleston
family. An early sign of unconventionality
occurred when in college she organized
Republican voter-registration drives. Her
parents were prominent Democrats. For that
and other aberrations—including putting her
son into a public school that had a majority of
black students—they legally disowned her, she
says.
• i p f
What Deans may have lost in being cut off
from her natural family, she has more than
gained in ties to people on death row. Many see
her as a sister or mother. Eight men have asked
her to stay with them until being led off to the
execution chamber. A death-row prisoner in the
Mecklenburg, Virginia, Correctional Center,
about two hours south of Richmond, has known
Deans for six years and says of her: "I couldn't
understand how somebody who was a member
of a murder victim's family could sit down
across the table from me and tell me that I
wasn't evil, that the acts I did may have been
evil, but I wasn't evil. I was a human being and
people cared. We spend hundreds of hours
talking and cornmunicating."
EPILOGUE
Joe Giarratano currendy lives in the Red
Onion State Prison in Pound, VA, caged 23hours a day in an 1 l-by-8-foot cell with a steel
door and thin slot for inserting mail or meals.
Red Onion is a supermax facility where guards
use guns to watch over inmates. The Washington
Post reported on April 19 that "in Red Onion's
first nine months, shots have been fired 63
times." The paper quoted Ronald Angelone, the
state's supermouth 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."
Hundreds more are likely, with no shortage of
other people to work with. The rapidly rising
death-row population is nearing 2,200, the
highest in U.S. history.
A goal of Deans's counseling is to arouse in
the individual murderer a sense of horror at
what he did and have that lead to atonement of
some kind. "So long as the murderer does not
acknowledge his responsibility by seeing his or
her victim as a human being and recognizing
the humanity of his or her victim, society's
punishment is a useless act of vengeance. That
is not to say that some murderers do not come
to recognize their victims' humanity and accept
responsibility for what they have done. Some
do, but they do it in spite ofthe death penalty
and prison."
Deans, the angel of America's death rows, is
aware that some people dismiss her as a saint
and others as an emotional freak. She is neither.
She is no more than a pragmatist wanting to
decrease the nation's violence, and what better
place to work than death row where violence is
on the increase.
The prison has no law library, no meaningful
job training program and no significant
education classes. A February 1999 directive
decreed a new mail policy: "Copies or sections
of publications, brochures, newsletters,
materials printed off the Internet or other
printed materials will no longer be allowed or
enclosed in mcorning correspondence."
Amid all this inhumanity, Joe Giarratano,
embracing the philosophy of Zen Buddhism to
which his studies of nonviolence was likely
leading him all along, refuses to be spiritually
broken. His sense of humor remains intact as
revealed in this excerpt from this recent letter to
the Center for Teaching Peace: "On May 1,
Virginians to Abolish the Death Penalty will be
holding a banquet in Charlottesville to honor
Marie Deans and Gerald Zerkin with the—can
you believe this?—the Joseph M. Giarratano
Truth in Action award. Now that is a humbling
experience for me. Fm told the honor came
down to a choice between me and a U.S.
Supreme Court Justice! That had to be
Rehnquist or Scalia—only way they could've
decided on me!"
Richmond, VA
Thank you, Joe, for your wit and good cheer.
August 27, 1989 It's humor that may save us all.
^f
So we need to weed out from our lives and institutions—
including churches—the seeds of violence, fear, greed,
racism, sexism and homophobia and all eke that divides
us as human beings. We ako need to examine how we
can become better stewards of God's earth, live simply,
and embrace a consistent life ethic whereby we uphold
the sacredness of all life... For a growing number of
people, taking a vow ofnanviolence has been an important
first step toward cultivating a nonviolent way of life.
Arthur Laffin
Swords into Plowshares
Designed by
rmd
publishing
703-516-0089
EXHIBIT 27
Declaration of Jfensie Anderson
I
!
I, Jensie Anderson, hereby declare that the following information is true, accura^and
complete to the best of my knowledge, information, and belief.
1,1 have been an attorney for sixteen years since my graduation from the Uhivef s&y of
Utah College of Law in 1993. After a brief stint in private practice, I became a staff attorney
specializing in prisoners' rights, civil rights, and constitutional law with the American Cjivil
Liberties Union (ACLU) in Salt Lake City, Utah in December 1994. I remained at the &£LU
until July 1997,- when I returned to private practice for two years. Since 1999,1 have bien a
j.'
member ofthe faculty ofthe University of Utah S J. Quinriey College, of Law as a cluneal
professor, supervising students participating In prosecution, defense-, and innocence clix icjs. I am
also the President ofthe Rocky Mountain Innocence Center, a non-profit, organization Whose
j '•
mission is to seek the exoneration and release of innocent persons, convicted of crimes Ihey did
not commit and serving prison sentences or awaiting execution for such crimes.
2.1 met Joe. Giarratano in September 1996 when I was a staff attorney at the ACJLU. and
J.s
when he was transferred from the Virginia Department of Carrections to the Utah StateiPrison
("USP") in Draper, Utah through an interstate compact. Several of Joe's supporters, including
Marie Deans, contacted mis and asked that I visit Joe. Before I met Joe, 1 had no idea of tjow
valuable an asset he would be in helping reform abusive prison conditions at the Utah S tafe
Prison. During our first visit, I was impressed by Joe's quite intelligence, his gentle demeanor
!i
and his absolute lack of anger and bitterness despite his long incarceration. He was cle^rjy
distraught by his unexpected (and unwanted) transfer to Utah, but he wa$ also immedia|ely
concerned by conditions he observed at USP.
t '
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t-
3. Early in my tenure at the ACLU, we began receiving reports about the use olrestraint
devices at the Utah State Prison CUSP"); Initially, we were told that U.SP was; using a stainless
steel, six point restraint board to control and punish mentally ill prisoners. The most egregious
case involved Steven LeRoy Nelson. A public defender working with Mr. Nelson reported to us
that he had been strapped to the restraint board for twelve weeks and one day beginning in
February of 1995. Although Mr. Nelson had a long history of mental illness which inched selfmutilation, the prison doctors defennined that he was "fnalmgering*' :and terminated his) ij
• j
psychiatric medications. Instead, he was placed on the board, naked except for his uiKKSwear,
restrained by bis arms, legs and chest. The light was never turned offin the room when v- he was
kept, and he had no choice but to urinate and defecate on himself. One of his hands wa ^released
••
" *i
at meal times, he was allowed up, on average, four times per week, and he was hosed bffln lieu
l-i
of showers. It was only after Mr. Nelson's public defender became aware ofhis condition that a
judge ordered that Mr. Nelson be transferred to the Utah State Mental Hospital for appippnate
treatment The ACLU immediately began investigating the use of the board at USP. { •,
4. Joe objected to his transfer outside the state of Virginia and not long after arjrrylng at
USP, Joe began a. hunger strike. Prison official's soon transferred Joe to the USP medical'ward.
There, Joe saw first-hand USP's use of another restraint device known as the "devil's chair" that
USP used in lieu of mental health treatment Joe quickly reported to me both his direct). •
observations ofthe use ofthe devil's chair and information' he learned from other inmat is,, whohad been put in the chair. This was the first time that I or anyone at the ACLU had h w i : about
this second, extremely egregious.restraint device. Prisoners with mental ftlriess were bejhg
;:
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denied psychiafrio medications and instead were being strapped into the •devil's chair'lfdf hours,
and sometimes days. Unfortunately, in attempting to investigate the use of these rcstrafnt
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devices at USP, ACLU hit a number of barriers. Most notably, it became clear that the juse ofthe
chair was widespread, but that the individuals who were most often the target of USP tclrtbre
were either unable to communicate their need for assistance due to illiteracy or severe nWtal
health issues, or due to prison regulations that prevented, them from writiiig to us. Priscjn&rs were
also afraid to write to the ACLU fearing that they would suffer retaliation. Finally, we $ujspected
that some prisoner letters were being diverted before they could reach us. We strategia ejd with
our National offices, but continued to struggle with developing evidence to support a n< eded
class action lawsuit. For this reason, Joe became a key source of information for our
investigation.
j '•
5. During the months that Joe was assigned to the USP medical unit, Joe was a|l« to give
us invaluable information about the use of the "devil's chair" as well as the names of pisoners
who were being restrained. Joe's assistance propelled OUT investigation, and in cooperation with
two local private attorneys, die ACLU was able to interview more than forty prisoners.-fvho had
IJ
been subject to the "devil's chair." We learned that prisoners were strapped naked into" ifie
1
"devil chair" with multiple chest straps, arm straps, leg irons and chains; a waist strap and
handcuffs. They were often left to sit in.their own feces .not only for hours at a time, biif-also for
days. The worst case, one that was brought to our attention by Joe, was a mentally ill ipdjividual
who, after being denied medication, was placed in the chair repeatedly, the longest strelc^ being
ninedaysr-
---
— ;•
6. As we continued to investigate the use ofthe "devil's chair" and other constitutional
violations at the USP, Joe became more and more anxious to return hom^to Virginia, pti March
20, 1997, Michael Valent, a known schizophrenic, suffered a massive heirt attack afteijliping
i
strapped in the "devil's chair" for sixteen hours. USP officials' initial reports1 abput MiLValent's
I;
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violent behavior were eventually contradicted by a video showing a scared, twenty-nine year old
s. i
man being forced, naked, into the devil's chair after passively refusing'to remove a piMvJcase.
-.
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from his head. Nine days after Mr. Valent's death, Joe was again transferred; this time Jtor
•:
Illinois. Although there may not have been a correlation between Joe's transfer and Mi ..Valent's
* i
death, the prison was well aware that Joe had provided us with important information a )'qjut the
•
f.
•t
use ofthe devil's chair. Tn feet, based upon the information that was discovered as a result ofthe
Joe's assistance, we ultimately forced the prison to cease using the devil's chair, and Mt. I
Valent's family was awarded a substantial wrongful death settlement.
7. Joe is a remarkable human being. Although when I met Joe he had been met iterated
under some ofthe most challenging conditions possible for years, he. never expressed si dfpity or
anger about his own situation. Instead, he showed tremendous compassion and concern;about
the conditions ofthe inmates around htm who were being subjected to abominable treajuiient and
R
took courageous steps to help alleviate their suffering and ensure that other inmates wetenot
subjected to the same treatment To remedy his own situation, Joe adopted the most hrjnorablc
1:1
methods imaginable — persistent and vocal protest and passive resistance through his htaicjger
:
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strike. In my0C\
career, I have met hundreds, of inmates but I have never met a more principled and
elai
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Date person.
peaceful
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SUSAN BACA
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EXHIBIT 29
Declaration of Jamie Fellner
I, Jamie Fellner, hereby declare that the following information is true, accurate, and
complete to the best of my knowledge, information, and belief:
1. I have been a lawyer since graduating from law school in 1979. Since 1994,1 have
worked for Human Rights Watch in New York, where my work has emphasized the conditions
of incarceration in the United States. I have conducted extensive research, published my
findings as Human Rights Watch reports or in other publications, and have advocated for
changes in practice and policy where appropriate in order to ensure compliance with human
rights norms. In the course of this work, I have visited numerous prisons and interviewed and
corresponded with countless prisoners. From 2001 to 2007,1 was the first director ofthe US
Program, until I stepped down from management responsibilities and became Senior Counsel. A
copy of my biography is attached to this Declaration.
2. I interviewed Joe Giarratano and other inmates as part of my research to prepare a
1999 Human Rights Watch report on Red Onion State Prison, a super-maximum security facility
in Vfrgmia. Joe's and other inmates' concerns about the mistreatment of prisoners at this facility
prompted the investigation and report by Human Rights Watch.
3. Whether out of misguided concern for my safety or a desire to intimidate the inmates,
inmates who wished to speak with me were required to wear stun belts during the interviews.
One inmate was sufficiently distressed that he cancelled the interview.
4. During my interview with Mr. Giarratano, he was unusually intelligent, cogent, honest,
rommitted to the well-being of others and free of rancor. His descriptions of conditions Red
Onion State Prison were objective and balanced and confirmed by other inmates in my
1
conversations with them or in their correspondence to me. (Both before and after publication of
the 1999 report, we received correspondence from several hundred inmates).
5. Following my interview of Mr. Giarratano, I have corresponded with him at various
over the years, at his initiation or mine. In his letters, he has shown the same ability to be
perceptive, keenly observant and fair that he had during his interview. In all my communications
with him, verbal and in writing, I have never known him to exaggerate, to seek sympathy, or to
misrepresent the conduct of correctional officers or officials, even though, over the years, they
have needlessly subjected him to appalling conditions of confinement. He has sought to
contribute to the work of Human Rights Watch because he cares about the well-being of his
fellow inmates. Joe's efforts to improve the treatment of prisoners have at times led to retaliation
by prison officials, but, to my knowledge, Joe has never given up his efforts or betrayed his
beliefs.
6. On a personal note, Mr. Giarratano's life history is one of a remarkable individual
trajectory. Mr. Giarratano has educated himself in prison. He has also developed a core
understanding of himself that is impressive in anyone, inside or outside prison. He has
accomplished considerable good from behind bars, seeking to improve prison conditions, to
increase respect for the basic human dignity of prisoners, and to expand the opp<rrtunities for
prisoner self-improvement and rehabilitation.
7. I wish the Governor or his staff would sit down with Mr. Giarratano because I think_
they would find him as impressive and inspiring as I have, his modesty and quiet demeanor
notwithstanding. I have interviewed many prisoners while at Human Rights Watch, and Mr.
Giarratano stands out because of his remarkable personal qualities. I have no doubt that were the
Governor to grant him clemency and release him from prison, Mr. Giarratano would continue to
inspire and accomplish much for the benefit of others. I want to add that I have very rarely
supported petitions for clemency. But I think Virginia would be well-served by giving Mr.
Giarratano a chance at using and developing his skills and talents in the community. I think Mr.
Giarratano has shown by the way he has conducted his life in prison that he is able to take on the
responsibilities such clemency would put on him.
^Ld J, <favj_
Date
/
/
yyjamie Fellner, Esq
EXHIBIT 32
NOW UPDATED WITH NEW MATERIAL
BARRY SCHECK/PETERNEUFELD/JIMDWYER
WHEN JUSTICE
GOES WRONG
.ND HOW TO
MAKE IT RIGHT
g.H'ml-l
•:r?..
I N N O C E N C E
"A troubling portrayal of the
criminal justice system fram
within its well-guarded walls."
—The Hew York Times
308
ACTUAL INNOCENCE
awful. That poor soul lost seven years of his life/'
said McCarthy.
How did it happen? First, there was the disputed
statement made by Snyder in the police station. Then
there was the victim's identification. But the psychological process of indicting and convicting a man is
far more subtle than just pieces of evidence, McCarthy explained. The prosecutor persuades himself of
the suspect's guilt, and then observes facts and evidence only through that prism.
"People say, 'I'll believe it when I see it' But sometimes we see it once we believe it When there's a
preconceived notion, we build facts into it, to support
the notion. Did that happen in this case? It very well
could have happened," said McCarthy. He did not
understand, though, how the investigators could
have misheard Snyder's alleged confession.
"Maybe I was too willing to believe what the lawenforcement officers told me. Maybe I got caught up
in the sense that the prosecutor and the investigators
are all on the same team. Maybe we ought to be
more challenging of their assertions. And in a rape
case, there's often a bonding between the victim and
the prosecutor, and the investigator. They are going
through a bad time. The psychology is that you're
the last line of defense between them and the guy's
getting out on the street.
"It's difficult to challenge the victim—are you certain you saw him and had a good look? You show
her the sheet from the bed, and her voice cracks and
she breaks into tears. Ifs tough when someone points
out with the conviction in her heart that you're the
person who did this.
"We need to teach young prosecutors to do a critical analysis of your evidence. Typically, we give
power to people at the wrong end of their lives."
13
Lessons
In 1998, the Missouri State Investigators Association
held its annual meeting and framing program in
Kiinberling, Missouri, a big lakefront resort a few
miles from Branson, the Jerusalem of country music.
During the educational portion of the meeting, one
lecture consisted of a postmortem on a murder case
and how poor write-ups of police reports could have
hurt the prosecution.
"We're going to review these reports to see if the
investigators could have done a better job and tightened up the case," said Kevin Green, a researcher
working with Gold Shield Consultants, the firm providing the framing materials.
The crime had been committed in September 1979,
nineteen years earlier, in Tustin, then a small company town for Marines and their families in Orange
County, California. The police were called before
dawn to a ground-floor apartment. A Marine corporal named Kirk Grier stated that upon rehirriing from
a late-night munchie run, he discovered his pregnant
wife in a pool of blood, unconscious. The victim obviously had been hit with a blunt object. Corporal
Grier's double cheeseburger sat on the table,
unopened.
His wife, Debbie Grier, was taken to the hospital
with critical head injuries. "She was nine months
309
310
ACTUAL INNOCENCE
LESSONS
pregnant, and there was concern for her survival as
well as the baby's," said Green. Soon afterward, the
unborn child died and had to be removed by cesarean section. The woman was in a coma for a month.
When she came out of it, she was unable to communicate for weeks.
As Green outlined the case, police initially thought
that it was another crime by the "Bedroom Basher/' a
prowler known for climbing into ground-floor apartments, smashing the heads of women, and then raping
*em. At the time, California was flush with Hillside
Strangler fever, and no one rushed out to draw attention to the Basher. Perhaps it was felt that one serial
fciUer at a time was all the public could handle.
In any case, the Bedroom Basher theory was dropped
when Mrs. Grier finally did begin to conununicate, first
with her husband, then with her mother. "She wanted
to know what had happened to her," said Instructor
Green. "She had lost much of her hearing, her ability
to smell, some of her speech, and couldn't recognize
family members other than her mother and her husband. Then came the big news."
Based on a series of hand signals from Debbie, the
mother realized that her daughter was trying to tell
her something about Kirk—namely, that he had hit
her. Debbie apparently waited until Kirk was out of
the hospital room to give her mother the message
that her attacker had been her husband.
Only then was the husband's alibi seriously scrutinized. On the night of the crime, he told one investigator that he had gone out to the Jack in the Box to
get some burgers for himself. But he told a second
detective that the food had been for his wife. "He
also told the police that he didn't get the food from
the Jack in the Box right across the street because it
had a big line at one-thirty in the morning," said
Green. Corporal Grier's story might have been fishy
from the jump if the investigators had just paid attention to their own reports. But they hadn't.
Neighbors said they heard yelling from the apartment that night, a woman screaming "Don't hit me,"
but the neighbors said the couple often had loud
arguments.
"Kirk, who almost had slipped past as another victim, quickly became the lead suspect," said Green.
Using an overhead slide projector, he displayed the
police reports on the crime. Early on, the victim had
said she was struck with a full bottle or can of Coors
beer, although there was no beer found around the
house that night. As a result, explained Green, they
overlooked other property in the room. One item in
particular, a key caddy, was not mentioned in the
reports and not even dusted for fingerprints.
"Debbie testified at the trial that it was this key
caddy that was the last thing she saw before her
husband hit her with it," said Green. "She said that
he had demanded sex from her, and that she refused,
sending him into a rage. She said he had beat her
with the key caddy and raped her."
During the trial, the defense argued that Debbie had
suffered such serious brain damage that her memory
was unreliable. Grier swore he had discovered his
beaten wife only when he returned from his food run.
He claimed to have seen a black man lurking near a
van, both when he was leaving the house and when
he returned. The prosecution scoffed at the theory. One
would describe it as the "bogey man defense."
Originally charged with first-degree murder in the
death of the unborn child, Grier was convicted of
second-degree murder, so it was not a capital punishment case. Instead, he was sentenced to fifteen years
to life. Grier went to prison, his wife divorced him
311
312
ACTUAL INNOCENCE
and struggled to live with the devastating injuries,
and the matter vanished from public consciousness.
"There were some unusual developments in June
1996, seventeen years later," said Green.
In Tustin, a young detective named Tom Tarpley
was investigating the old, unsolved murder of Debora Jean Kennedy. In 1980, at age twenty-four, she
had been beaten on the head, then raped after she
was dead. Tarpley found the crime-scene evidence in
a storage locker and sent it away to be compared
with a data bank of DNA samples collected from all
convicted state prisoners. There was a match: a man
named Gerald Parker, a former Marine, now a homeless drifter, had been the person who raped Debora
Kennedy. At the same time, Tarpley heard that detectives in Costa Mesa, the next town from Tustin, also
had come up with Parker's name in the investigation
of two unsolved murders from the 1970s.
"Parker happened to be in prison on a parole violation but was due to be released on July 6," said Green.
"This was in the middle of June." Tarpley, and the two
detectives from Costa Mesa, Bill Redmond and Lynda
Giesler, drove to Avenal State Prison, a low-security
facility in California's Central Valley. For more than an
hour, Redmond and Giesler questioned Parker. He
toyed with them, and they got nowhere. The two Costa
Mesa detectives were about to go home, when they
told Tarpley to take a shot with Parker.
Tarpley saw that Parker was cuffed behind his
back. "He had the cuffs turned around, so he was
showing him respect," said Green. Then Parker
began to talk.
He had committed so many murders and beaten
so many women that he could not keep track of who
had died, and who had survived. But he had some-
r
1
LESSONS
313
thing to say about a case that was not even on the
list of unsolved crimes.
"First thing," Parker told Tarpley, "you better go
get that Marine off death row for killing his wife. I
did that one."
That would have been Debbie Grier, and it was not
a case that Tarpley or anyone else was investigating
because it wasn't "cold"—it had been closed seventeen years earlier with the arrest of Kirk Grier. At
the time, Detective Tarpley was in junior high school.
Parker's opening words were the beginning of a
long, creepy videotaped recording about the blur of
murder and rape, a window into the banal mind of a
serial killer. He spoke about the women he had killed
with two-by-fours or with hammers, women alone in
their homes. He didn't set out to kill them, just knock
them out so they would not resist. Before entering, he
rarely checked to see if anyone else was in the house,
an act that Parker conceded, years later, was reckless.
"There could have been a raving lunatic on the other
side of that door," said the serial killer. Two decades
earlier, he had murdered five women, beaten many
others, and was caught only when he kidnapped and
raped a thirteen-year-old girl on the way home from
her father's funeral. Until June 14, 1996, no one had
ever spoken to him about the murders.
By now, the class of Missouri investigators was
buzzing. They wanted to hear more about the confes' sion to the Grier attack.
Parker had told the detectives at the prison: "While
I was incarcerated, I was reading the paper about the
Marine and his wife, and this one was in Tustin, and
ah, I, if I'm not mistaken, they sent him to death row.
And so there's a man on death row because of a
murder I committed. She was pregnant at the time,
and ah, he, they were arguing in the house. I was
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EXHIBIT 33
Steven D. Rosenfield
Attorney at Law
913 E.Jefferson Street
Charlottesville, VA 22902
Telephone 434-984-0300
Fax 434-220-4852
Email: [email protected]
June 26,2009
The Honorable Timothy M. Kaine
Governor of Virginia
Office ofthe Governor
P.O. Box 1475
Richmond, Virginia 23218
Re: Petition for Clemency for Joseph Giarratano
Dear Governor Kaine:
For 32 years, my practice and career has been chiefly devoted to criminal and capital
defense and plaintiffs civihfights practice. During this time I have had many occasions to work
with Joe Giarratano and to represent him in civil rights actions from time to time. It is with great
pleasure that I inform you that I will be employing Joe as my legal assistant upon his release
should you grant him clemency. I clearly foresee the benefits that will accrue to my clients and
to the community by employing him. A substantial amount of my work is committed to pro bono
help and Joe's assistance will allow me greater latitude in this pursuit.
I am keenly aware of Joe's legal acumen as evidenced by numerous cases that he has
handled pro se during his years as an inmate in the Virginia Department of Corrections. Over the
years, Joe has assisted many inmates with their habeas cases while also engaging in a wide
variety of legal issues including visitation rights, access to inmates' lawyers, adequate prison
medical care, and access to public information, to name a few. Joe is widely recognized
throughout the legal community as an astute legal scholar and a prolific writer. Joe has written
many legal briefs and legal articles and his writings have been published in numerous publications, including the renowned Yale Law Journal.
There are several cases of national significance that Joe spearheaded that clearly
exemplifies his unique legal talents, but one case stands out that represents his efforts on behalf
of those that are less fortunate. Joe was the named plaintiff in Murray v. Giarratano, 492 U.S. 1
(1989) in which he filed a pro se, class action complaint in federal district court involving the
The Honorable Timothy Kaine
June 26, 2009
PAGE TWO
rights of death row inmates to have access to legal counsel in state collateral proceedings-a novel
issue. He would later be represented in this case by Jerry Jerkin. Joe initiated this class action
lawsuit on behalf of Earl Washington Jr., a mentally retarded man. Mr. Washington was
scheduled to be executed even though he did not have an attorney that could pursue state
collateral proceedings on his behalf.
Both the district court for the Eastern District of Virginia and the full court ofthe United
States Court of Appeals for the Fourth Circuit found in Mr. Giarratano's favor, recognizing that
Virginia's death row inmates had a constitutional right to counsel in state collateral proceedings.
Even though the United States Supreme Court reversed the lower court decision in a 5-4 opinion,
changes in the way the Commonwealth of Virginia delivered legal services to death row inmates
were already in the making due to the unrelenting efforts of Joe Giarratano.
While pursuing the class action lawsuit in Giarratano v. Murray, 668 F. Supp. 561 (E.D.
Va. 1986), Joe was finally able to secure counsel for Earl Washington Jr. As a result, new
counsel was able to obtain a stay of execution, just nine days from Mr. Washington's scheduled
execution date. After years of litigation, Mr. Washington was granted an absolute pardon from
Governor James Gilmore IJJ for the wrongful capital murder conviction that placed him on death
row for almost 10 years. I know that you are personally familiar with Mr. Washington's civil
rights struggle which would not have been possible without Joe's persistence and help.
I believe that Joe Giarratano will be a productive citizen in our community and an
invaluable asset to my law practice. I look forward in working with Joe and also assisting him as
he makes his transition back into the community.
If we can provide you with any additional information, please contact us.
Sincerely yours,
j <^^4-t^t^<
Steven D. Rosenfield
sdr/
cc:
Stephen A. Northrup, Esq.
Anthony F. Troy, Esq.
Donald P. Salzman, Esq.
Allison Guagliardo, Esq.
Joseph M. Giarratano