Earl & Joe (2000)

Well, here we go again. Earl Washington is yet another innocent on death row in America, this time in Virginia. DNA tests have verified what many have known for years and Washington, who has the intellectual capacity of a ten-year-old and is prone to agreeing with authority figures, has finally been pardoned for the rape and murder charges that placed him in the shadow of the electric chair until doubts caused the commutation of his sentence to life in 1994. The question of his release after sixteen years in custody has been pawned off to the parole board because Virginia authorities are doing everything in their power to keep from having to admit incarcerating and terrorizing a man for rape, murder and other crimes he did not commit.

Washington is innocent of murder despite the fact that he confessed. An agreeable young man who suffers from mental retardation, Washington also confessed, at the suggestion of police, to a number of other crimes in which he had no involvement.

This tragedy, the 88th acknowledged wrongful death penalty conviction since capital punishment was reinstated in America in 1976, will be swept under the political rug as have those that preceded it, with death's cleanup crew continuing to insist that there is nothing wrong with their horrendously flawed system.

Try as they will, however, no superficial housekeeping attempt can hide the fact that yet another human being has been snatched from the jaws of death-by-ambition. Nor can they pretend that this exoneration proves that "the system works." This victory, as in the 87 that preceded it, belies any attempt to sanctify state killing. It is the direct result of energy expended by private individuals and organizations given to the belief that "equal justice under law" ought to be more than a slogan uttered by venal politicians at their most self-serving, working against a system trying feverishly to cover up its mistakes.

This happy result, yet another innocent rescued from a process that devours the blameless along with the mentally ill, those with mental retardation and those who were children at the time of their crime, comes about as the result of many years of tireless effort on the part of truly dedicated and concerned people who refuse to accept the political lies that attempt to sanctify the bloody ritual of state killing. Thousands of hours and tens of thousands of dollars are spent - time, money and energy that might well be used to heal some of society's other bleeding wounds - to right these wrongs created by sloppy, hurried or racist police, ambitious prosecutors and a politically sensitive, job-insecure judiciary.

But the triumph of justice in Earl Washington's case has hidden within it more than simply another example of the tragedy that is capital punishment in America. A single fact briefly mentioned by one reporter, Pulitzer Prize-winning columnist Jim Dwyer in the New York Daily News, points to a saga that demonstrates the incredible tenacity of the human spirit even as it lays bare the evil inherent in the political swamp that has engulfed the corrections system in this country.

Dwyer's September 7th, 2000 column opened with the line, "The State of Virginia was one week away from executing Earl Washington, a penniless, mentally retarded sharecropper, when a cellmate on Death Row begged a visiting lawyer to help him." What's this? A condemned man on death row begging help for another? There's a curiosity. Surely there's more to that story.

And then, approximately half-way through the column, comes this additional piece of information: "In the last week of August 1985, a New York lawyer named Marty Geer was visiting an inmate on Virginia's Death Row, Joseph Girratano (sic). He told Geer that the guy in the next cell was innocent, that he had no lawyer and was going to die in a week. Geer called her boss in New York, Eric Freedman, at the law firm of Paul, Weiss, Rifkind & Garrison."

This plea by one Joseph Giarratano, a convicted murderer, and lawyer Geer's subsequent action, set in motion the chain of events described above and should mean freedom for an innocent Earl Washington. But does that compute? What could it be in the makeup of a murderer, presumably simply another example of the evil, drooling, fang-toothed monster prosecutors love to paint for juries, that would make him concerned enough to go to bat for another?

What, indeed? Giarratano was convicted of the murder of two women and the rape of one of them with whom he shared a Norfolk, Virginia, apartment in 1979. He had confessed to the murders, asked for the death penalty, and even attempted suicide before his trial. Clearly, his death would not be a great loss to society, so what's going on here?

I met Joe Giarratano sometime in the late 80's at the behest of Marie Deans, who then ran the Virginia Coalition on Jails and Prisons. Marie contacted me, saying that Joe's appeals had about run out and, despite the fact that there were "new issues," he would soon die unless a campaign could be waged to stop the execution.

An ardent abolitionist, Marie is an angel of mercy to the men on Virginia's death row. She offered counseling, advice, a willing ear and any kind of help she could bring to ease their plight. I knew her as a determined advocate who would not rest until the condemned had fully realized every benefit that was guaranteed them by law or by God, whether those in authority liked it or not. And many did not.

When she first met Giarratano, Marie said, he was a miserable wretch, a near-zombie from the effects of daily doses of Thorazine he was being given as a result of his depression and the suicide attempt. After a few visits she convinced him that the medication was not a requirement and that without it he'd be better able to think, converse, and eventually, she hoped, to read.

Next she pressed him to reinstate the automatic appeals that he had waived, an act that assured his quick execution. Horrified when she discovered that he had waived the appeals at the suggestion of his own mother who was evidently anxious to have him put down, Marie calmly explained the value of allowing the appeals to proceed, the advantage in giving himself some time. Responding to her expressions of concern, themselves an unusual experience in his life, he agreed.

Over time she discovered Giarratano to be a sweet young man, then 26 years of age, tortured about what he had done, yet, once the drugs had worn off, equipped with a supple and open mind. With her encouragement he took an offered book and, though a halting reader at first, soon demonstrated a keen, if untapped intelligence. As their relationship deepened she learned of the horrifically abusive childhood that had left him a hopeless drug addict and alcoholic at the age of eleven and further explained his mother's support for his quick execution.

Leaving his Florida home, he wandered, eventually supporting himself as a Waterman on the Virginia coast. But beyond the substance abuse his criminal history was strikingly bare. The damage done, to his self-image by the abuse at home and to his system by the drugs and alcohol, had left him vulnerable to blackouts, and it was in the midst of one of these, he said, that he had raped and murdered.

In this self-induced fog of drugs and alcohol, sometimes working and often not, Joe had wandered, eventually ending up sharing the apartment in Norfolk with Toni Kline and her teen-aged daughter Michelle. Though he never indicated that either of the women were prostitutes, Joe said men were in and out of the apartment all the time and that drugs and alcohol were readily available there. And it was there that he came out of a blackout in February of 1979 and found himself in hell. Blood was everywhere, the women he knew as his friends were dead and he, the only one left, was responsible.

Horrified at what he'd done, Joe ran from the place. Some childish urge insisting he go to his mother, he got on a bus to Florida. Wracking his brain to remember, torturing himself with what he knew he had done, the ride south was a torment. Getting off the bus in Jacksonville, he knew he could go no further, walked up to the first policeman he saw and turned himself in.

Summoned by the Florida authorities, Virginia police came quickly and took custody of their murderer. Once back home, they went over the crime with their befogged and despondent suspect, eventually putting on paper five separate confessions.

Case closed, a quick trial ensued. A morose Joe Giarratano asked for - and got - the death penalty. And, after the unsuccessful suicide attempt, there he sat, waiting for the electric chair. Until, that is, he met Marie Deans.

Working with Joe and the rest of the men on death row was beyond a calling for Marie, it was a way to deal with what she saw as a terrible social wrong. Seeing the value in those whom the state had dehumanized, in cases like Giarratano's digging it out of a reluctant heap of self-hatred, was as natural to her as breathing, as much a part of being a member of society as was treating one's neighbor with respect. And despite the contempt many in the system felt for the inmates, Marie's simple decency and fundamental honesty won her many admirers, even a few converts.

A European team shot a documentary film about her work, much of which at the time happened to feature a now-blossoming young Joe Giarratano who, through Marie's encouragement, had become clear-eyed and increasingly interested in the world around him. His reading and her support had contributed to the young man's becoming something of a leader in the Mecklenberg Correctional Center's death house and his appearance in the documentary, when shown in Europe, tugged at the heart of a German woman who saw in Joe what might have become of her own son.

The woman contacted Marie and indicated that she'd like to do something to help Joe, if such a thing were possible. Marie, having come to know the young man quite well by that time, said that what she'd like more than anything was enough money to conduct an investigation of his background. Her goal, if a search showed that he lacked a history of violent behavior, was to take the case back to court in an attempt to overturn the death sentence. The law in Virginia, she explained, required that an aggravating circumstance be present in order for a death sentence to be imposed. In Joe's case, the state had charged that he was a "future danger," meaning that he would be a threat to society in the event he was ever released. In order to eliminate that possibility, then, he must be killed.

From the woman came enough money for Marie to hire a retired police officer to look into Joe's background. In order to properly conduct the investigation, this man not only went through Joe's history, but studied the trial and the evidence as well. When, some time later, he called Marie with his report, she asked if he thought it was likely that they could make the case that Joe was not a "future danger" risk. The investigator replied, "Well, first things first. What about the fact that he's innocent?"

Shocked, Marie heard the investigator out. He had become fascinated when looking at the evidence presented by the state and had examined their case minutely. Joe's five confessions were coaxed out of him by police who found, each time, that his recitation of events did not comport with the facts at the scene of the crime. Each time they went to the prosecutor with a confession they found another discrepancy that had to be dealt with, another hole that needed to be plugged.

Joe, Marie knew, had no memory of the crime itself. He had awakened from a blackout and found his friends dead. Alone at the scene, horrified and filled with self-disgust, he assumed that he had committed the deed. But had he? The investigator, and after some thoughtful probing Marie herself, believed not.

The murder weapon Joe described didn't square with the damage shown in the autopsy report. The stab wounds indicated the work of a right-handed assailant; Joe had a neurological deficit that compromised his entire right side and made him left-handed. The variously-described murder weapon itself was never found, though Joe hypothesized tossing it in the back yard. The driver's license of another man was found at the scene, along with bloody shoe-prints, hair, fingerprints and semen that did not match Joe.

Marie arranged for a pair of psychologists who specialized in the area of confabulated confessions to come in and interview Joe, look at the facts of the case and examine the evidence. Their conclusion: Joe was not the murderer.

Through it all, Joe himself was the most difficult to convince. Having made the initial leap, it took him quite a while to come around to accepting the possibility that someone else could have come into the apartment, raped Michelle, killed both women and left while he was passed out on the couch. But eventually he acknowledged that the evidence, including the heretofore unknown fact that the police were searching for another man when Joe turned himself in and solved their problem, should be tested in court. He would agree to a new trial. And this time, he would agree to having a defense presented so that the state would have to prove its case.

But it's not that simple. In Virginia there is what is known as the "21-day rule," which holds that once three weeks have passed from the time a verdict has been rendered, no new evidence can be admitted. Thus Joe, who had gone for years down the road toward the electric chair without questioning his own guilt, was unable to get a court to pay attention to this new analysis of his case.

Without stinting on her efforts for other prisoners, Marie worked every angle she could think of on Joe's behalf, including browbeating attorneys of her acquaintance into doing a tremendous amount of work on a pro bono (free) basis. Despite all their combined efforts, however, and due largely to a concerted campaign on the part of Attorney General Mary Sue Terry's office to frustrate their every move, Marie began to fear that Joe's time would run out before any court could be persuaded to take another look at his case. Every avenue seemed closed. Every motion entered on Joe's behalf was fought by Attorney General Terry and disallowed by the courts on the basis of "procedural default," meaning that the rigorously established (and blindly followed) guidelines - including the 21-day rule - would be honored despite the fact that they might be sweeping an innocent man to his death.

In one troubling development, a box of evidence containing clothing and other evidentiary material from the murder scene "disappeared" after Joe's attorneys requested that a newly developed process known as a DNA test be done to determine their client's culpability.

During this period (understanding that death row time is marked in years), his mind awakened by Marie's challenge, Joe developed a remarkable comprehension of law and philosophy and further advanced his innate leadership skills. Beyond becoming a key member of his own defense team, Joe began to personally assist and eventually file lawsuits on behalf of his fellow prisoners. Thus, speaking up on behalf of Earl Washington – ultimately saving the man's life and perhaps freeing him - was simply, in his eyes, doing the right thing. One of his successful suits, Giarratano vs. Murray, stands today as a legal landmark in the protection of death row prisoner's rights.

Also during this period, though a full assessment of the pertinent facts has never been made public, the largest death row escape in Virginia's history took place. In the face of much official embarrassment, a resultant cover-up and divergent stories from various participants, what is known is that Joe Giarratano, who could have escaped with the six who did, not only voluntarily stayed behind, but in the process saved the life of one of the guard/hostages.

In another instance, again with assistance from Giarratano, miserable conditions and staff brutality led to a lawsuit by the ACLU's Prison Project that resulted in Mecklenberg being put under federal oversight and the entire prison's administration being sacked.

Through it all, a frustrated Marie labored. By the time she contacted me, she had become convinced that Joe's only hope lay with Virginia's governor. Though Douglas Wilder, the sole African-American governor in the U.S., was a studiously moderate Democrat not given to bucking the political tide, her hope was that if enough attention could be brought to bear on the case he could be moved to do the right thing in spite of the then-prevailing attitude promoting "finality" in death cases.

Our campaign ultimately generated a good deal of press, leaking beyond Virginia's borders to national, then international attention. Visits to Joe, press conferences, meetings with the Governor's staff, rallies, petitions, benefits, radio and television talk shows netted a swelling tide of support for justice in the Giarratano case. Public meetings, secret meetings, support from national politicians, celebrities and international figures created a storm of controversy around the case, until finally, 36 hours before his date with the executioner, Joe's sentence was commuted by Governor Wilder on February 20, 1991.

Though elated that his life had been spared, the defense team was frustrated because Governor Wilder had effectively given half a loaf. The deal we had tried to negotiate was that as the Governor threw out the conviction, Giarratano would simultaneously waive his double jeopardy protection, leaving in place the first-degree murder charge and requiring that the Attorney General re-try him. It was Joe's belief - and ours - that with the confession debunked the case would simply not hold up and he would be freed. Unfortunately, Governor Wilder chose to simply commute the sentence from death to life in prison and left the decision regarding re-trial up to a very hostile Attorney General Mary Sue Terry, a woman dead-set on becoming Virginia's next governor. Because any waves created by a reversal in Giarratano's case would be a mark against her, no re-trial was even considered.

So, because he was deemed to have "beaten the system," in the very parochial view of many who serve it, Joe was saved from frying only to be thrown into the fire of their wrath. In his first post-death row cell, a transitional situation at Powhatan Correctional Center, word "somehow" got out that Joe was a snitch, virtually a sentence of death in prison. He was targeted and set upon, with complaints sent up through prescribed channels casually ignored. Those on the outside kept pressure on his captors by letting them know we were watching, but a corrections system is a virtual fiefdom and if one is in harm's way there is little those out in "the world" can do about it.

That, however, doesn't take into consideration the tenacity of one Marie Deans, who contacted Governor Wilder's office and suggested in no uncertain terms that it would not look good on the Governor's record to have his only death row commutation end up murdered in prison under the not-so-watchful eye of his Department of Corrections.

Quickly removed from Powhatan, Joe was assigned to Augusta Correctional Center in the far reaches of the state close to the West Virginia border. Here, though there was some initial testing, he prospered. The warden found him reliable and eventually supported Joe's idea of a way to bring peace to the institution. With the assistance and support of Marie and Washington Post columnist Colman McCarthy, Joe and a cellmate founded Peace Studies, ATV, an inmate-run alternatives to violence program.

Peace Studies had a remarkable record at Augusta. With support from McCarthy, Deans and others, classes in the philosophies of Ghandi and Martin Luther King, Jr., literacy programs, essay contests and computer training brought a new atmosphere to the prison. Those condemned as criminals and wastrels or otherwise dismissed as social detritus were surprisingly open to lessons about dignity, their own innate value and the power of non-violence. While the training existed, not one of the hundreds who took part had a disciplinary write-up. TV crews and reporters gave the program's success, and Joe, a great deal of attention.

And, at about this time, Governor Wilder was moved by the results of a DNA test to intervene in another death sentence, that of Earl Washington. On his last day as Governor in 1994, Wilder acted, but here again, perhaps because the results of the new science weren't considered completely reliable, or politically viable, Washington was also not set free but commuted to life in prison.

And at Augusta, Peace Studies' success became its worst enemy. The idea of prisoner-run programs succeeding where Department of Corrections programs failed did not sit well with incoming Republican Governor George Allen or Ron Angelone, the DOC head appointed by him. Angelone, a veteran of the vicious Texas prison system, immediately set out to establish his supremacy and control over the inmates, and Joe Giarratano, a high-profile convict who had beaten the system and refused to play dead, was at the top of his hit list.

Peace Studies/ATV was shut down. Giarratano was busted for taking a hit of some contraband wine offered by his cellmate and things went from bad to worse. Augusta was shaken up, the Assistant Warden for Programs was transferred and Joe was moved to Brunswick Correctional Center, where he was again, somehow, labeled a snitch. Though he tried to quickly establish himself in the new institution, the rumor had the desired effect and Joe was stabbed by another inmate. He survived, and ultimately was saved in that situation by those he had helped in earlier years. Friends have friends, and the word went out that he was no snitch, but a good man worthy of respect who was being targeted by the system.

But in September of 1996, before any of us knew what was happening, certainly before he could establish himself at Brunswick, Joe was shipped out in the middle of the night and flown, in the governor's private jet, to a Utah prison. Though the transfer itself was not all that unusual in corrections terms, the midnight ride and the governor's plane clearly told us he was getting special attention.

The press, struck by Joe's successes and intrigued by what appeared to be retaliatory treatment, pestered Angelone for an explanation, not only for the transfer but for the extraordinary manner in which it was carried out. The response was to paint Joe as not only a killer, but a ringleader and trouble-maker who was in danger in the Virginia system. For his own protection, Angelone insisted, Joe would never see Virginia again.

Landing at Uinta 1, the pit of Utah's State Prison system, Joe found himself in a primitive situation. Inmates, as he saw it, were totally cowed by the system, had no awareness of their rights and did their best to survive under terrible conditions. Brought there with the understanding that he was a "threat," rather than for his protection, Joe was initially kept in solitary confinement and on minimal rations. Little by little though, maintaining his own counsel and spending his time reading, he was able to establish a better understanding with the staff and was eventually allowed minimal contact with other prisoners.

Local attorneys, alerted to his presence by those familiar with the case, checked on him, which eventually resulted in even more relaxation of his conditions of confinement. This, though, led to increasing involvement on Joe's part with the inmate community, and in turn resulted in letters being written and petitions filed protesting illegal conditions at the institution. In particular, Joe was offended by the regular and excessive employment of the "Devil's Chair," a restraint device known to be so torturous that strict legal guidelines had been laid down limiting its use, guidelines assiduously ignored by the Utah authorities.

Because the heads of the Utah system seemed unconcerned about the dangers of the Devil's Chair, Joe wrote to the U.S. Justice Department explaining the problem. Unfortunately, before the Justice Department got seriously involved in examining Uinta 1's practices, an inmate died in the chair.

Because his intention was to get back to Virginia in spite of Angelone's vendetta, Joe kept up communication with his lawyers, supporters and friends, hoping that the dream of a new trial would not die in his absence. At the same time, he came to be an increasing thorn in the side of the Utah system, with his complaints and lawsuits finally resulting, just before he was once again exiled, in a judgment against the state's corrections department for unlawful use of the "Devil's Chair."

Having found Giarratano too much to handle, Utah determined to get rid of him. Because Angelone made clear he wouldn't take him back, a deal was worked out through the Interstate Compact system that landed him next, in March of 1997, in the infamous Joliet Prison, southwest of Chicago.

An ugly place set in the midst of a small industrial Illinois city, Joliet has dealt with hard people over many hard years. If its appearance alone would intimidate most newcomers, its reputation would seal the bargain. Yet when I visited him there, Joe had worked out a relationship with the warden that appeared to be based on mutual respect. His primary thought, when I asked how he felt about the move, was that "it's closer to home." Utah had been an unpleasant experience, he said, but the sense was that it had ended up being even more unpleasant for them than it was for him. This place was all right, he indicated, but he didn't plan to be here long.

Joe had already, of course, become involved in prison politics at Joliet, but the warden seemed to be a pro and the issues, unlike those in Utah, could be dealt with in a reasonable manner now that there was someone here with the intelligence and skill to recognize and take them on. What concerned him most was not Joliet but Virginia. He needed to get back there and see that the effort to get a new trial didn't founder.

To me, still a naïve outsider in spite of increasing experience of prison politics, the idea that this young man was so confident that he could work the system to get home despite Angelone's truculence seemed a fantasy. What I was more concerned about was Joe's health. He had developed liver disease, probably a result of his years of substance abuse coupled with more years of a minimally nourishing prison diet, and while lawsuits had resulted in his being able to get the vegetarian fare he had determined worked best for him, the tendency for the condition to occasionally flare up and worsen worried those in his corner. His periodic fasts and growing tendency to use hunger strikes to bring attention to issues of concern, we felt, were probably not helping.

Nevertheless, in the fall of 1997, I got a call from Marie telling me that Joe was in fact back in Virginia. Another hunger strike had resulted in the Joliet warden's giving him what he wanted despite the wishes of Virginia's D.O.C. An angry Angelone, clearly furious at being trumped by the wily con, agreed to take him back only to place him immediately in Virginia's new supermax facility, Red Onion State Prison, in the mountains of the southwest corner of the state a few miles from the Tennessee border.

Supermax facilities are, of course, intended to house the most dangerous inmates and do so under the most rigorous and limiting of circumstances. The idea that Giarratano could be so categorized is an outrageous example of the vindictiveness of Ron Angelone and the totality of the power he wields. At Red Onion, Joe is kept in his cell 23 hours of every day with time out for a shower three days and "Yard," or exercise time, five days per week. Human contact is minimal, with even guards relating through a small slot in the door.

The intention of these extreme, segregated facilities is to limit the possibility of escape for those prone to attempt it and to eliminate any chance for a violence-prone inmate to do harm to himself, a guard or another convict. While there may be cases wherein these sorts of precautionary conditions are appropriate, even then they would arguably be so on a temporary basis only. In fact, Red Onion, much like other supermax facilities in the country, is a political symbol of a "tough on crime" mentality that officialdom has found makes for good theater. Coupled with tough talk and macho posturing, this kind of brutality is believed to bring in votes from a population force-fed stories about the hideous monsters who lurk in the dark and are apt to spring out if not so locked away.

The Supermax Syndrome is also a powerful political tool for what is coming to be recognized as the "prison/industrial complex" in America. Hundreds of millions of dollars and thousands of jobs are involved with the creation and staffing of such facilities. Putting them in rural communities like Pound, Virginia, McAlester, Oklahoma, and Pelican Bay, California, not only injects money into the prison construction industry but creates jobs in areas of low employment at the same time as it provides a 'tough-on-crime' vote for legislators. Doubly self-serving, these votes give those same legislators a ready source of political and financial support from prison construction concerns as well as the expanding forces of correctional officers and their increasingly powerful unions.

The rub, of course, is to find enough inmates to justify the existence of such facilities. Since violent crime has decreased as the economy has improved in recent years, authorities and politicians have to fill the need they've created. Gangs, which everyone has been taught to hate and fear, provide a significant portion of the inmate population. Drug users, though often not violent, have also been sufficiently dehumanized to fit the criteria. And, it's a great place to put a prisoner you hate.

Though contact with other inmates is limited by supermax conditions of incarceration, Joe continues to assist with lawsuits and inmate grievances even in Red Onion as his friends and legal team struggle on the outside to find a way toward a just resolution to his case. Years of solitary confinement under incredibly oppressive conditions seem to have done little to dim his mental growth, though they have taken their toll physically. Currently deeply involved in the study of philosophy and increasingly given to meditation, Joe's unwillingness to crack even under the intense pressure of supermax conditions inspires awe among inmates - and, I dare say, even some of the staff.

Thus, today, Joe Giarratano, whom the Virginia authorities refuse to re-try for fear his innocence will require his release, continues to fight for what is right in the most depraved circumstances conceivable. Ironically, these same authorities whose combined efforts have not been able to defeat the spirit of this apparently indomitable man, are now also forced to confront his legacy in dealing with the fate of Earl Washington, the mentally deprived innocent whose life Joe saved fifteen years ago.

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