Mark Earley, former Virginia attorney general, now opposes death penalty

“If you believe that the government always ‘gets it right,’ never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty,” he wrote in a recent essay for the University of Richmond Law Review.

“I no longer have such faith in the government and, therefore, cannot and do not support the death penalty,” wrote Earley, attorney general from 1998 until June 3, 2001, when he resigned to run for governor.

Among other things, his essay touched on a capital murder case he handled as a young lawyer; the case of Earl Washington Jr., an innocent man wrongly sentenced to death in Culpeper; and a capital murder conviction recently tossed out in South Carolina some 70 years too late.

Earley is at least the second Virginia attorney general to change his mind about capital punishment.

William G. Broaddus, the state’s attorney general in 1985 and 1986, when five executions were held, was an outspoken opponent of the death penalty by 2000.

According to the Death Penalty Information Center, 36 people were executed in Virginia while Earley was attorney general. One of his office’s jobs was to defend death challenges from lawyers representing the condemned inmates, and he had high praise for the members of his staff tasked with the job.

But he described the process of going up and down the appeals courts as being “like a yo-yo on a string ... literally until moments before an execution was carried out.”

Today, there are eight men on Virginia’s death row, among them Ricky Javon Gray, sentenced to death for a week-long killing rampage in January 2006 in Richmond that claimed seven lives.

Virginia has put to death 110 people since the U.S. Supreme Court allowed executions to resume in 1976. The toll is third-highest among execution states in the U.S., but the percentage of people sentenced to death in Virginia who were ultimately executed is by far the highest in the country.

“We were poised to fight any last-minute appeals that were filed to spare a defendant’s life,” Earley recalled. But, he added, “Being that close to it all had a profound effect on me. Overseeing a legal system that put so many to death with such efficiency eroded me.”

“Regardless of one’s support or lack thereof, the carrying out of the death penalty is gruesome business,” he wrote.

Earley participated in a symposium on the death penalty at the University of Richmond School of Law in October. Stephen A. Northup, former director of Virginians For Alternatives to the Death Penalty, an anti-capital punishment group, said he chatted there with Earley, and Earley said he still had not made up his mind about the death penalty.

Reached by telephone Wednesday, Earley said it was a ruling last December by a South Carolina judge tossing out the conviction of 14-year-old George Stinney — executed more than 70 years ago — that was his tipping point.

Now in private practice in Leesburg, Earley said he plans to return to Richmond this year and open an office.

In his essay, Earley wrote that he could still make an argument on why the death penalty should remain a tool for prosecutors and, he noted, “there are some very heinous and unspeakable criminal atrocities.”

But he argued that the death penalty is based on the false Utopian premise that death sentences are 100 percent accurate.

“From the inception of our democracy, we have viewed it better that 10 guilty persons escape than one innocent person languish in prison or be put to death,” wrote Earley.

He cited a study that says 150 people across the country who had been on death rows have since been exonerated. They were condemned as a result of shoddy forensic science, prosecutorial bias, racial bias in jury selection inadequate defense representation.

The essay describes how early in his career as a lawyer, he was appointed to defend a man in a capital murder case in Norfolk in the early 1980s. At the time, he had no experience in murder cases, much less one where a client’s life was at stake.

The client, identified as, “Dave,” was described as being in his late teens or early 20s and accused of a midnight grocery store robbery in which the owner was shot to death.

Dave, said Earley, appeared to have some sort of developmental disability and it was difficult to have a linear, rational conversation with him to get helpful information.

“But one thing was clear — he was adamant that he had never killed anybody,” wrote Earley.

Earley recounted that Dave told him that at the time of the robbery he was at a storefront church on Monticello Avenue. “When I asked him why he was there at midnight on a weeknight, he replied that the preacher had just gotten a pink Cadillac, and that he and others were there to lay hands on the car and pray over it.”

Earley said he went to see if the church was there and discovered it was. He also learned there was a 24-hour pawn shop next to the church. He eventually found the employee on duty the night in question.

“’I know this may sound crazy, but do you happen to recall a group of people out in the street praying and singing around a pink Cadillac on such and such a night around midnight?’ Indeed he did,” Earley said.

From the employee he was able to identify some of the participants and one of them, an older bishop, had given Dave a rode home after the ceremony which would have put him at home when the robbery occurred.

Earley called the head of the Norfolk Police homicide division, a family friend, and told him he may have the wrong guy. He called back a few weeks later to report they were dropping the charges.

“I will never forget Dave’s father calling me, crying, and thanking me for what I had done for his son,” recalled Earley.

The case had a happy ending. “But I should never have been appointed on that case,” he said.

“If Dave’s case had gone to trial, I shudder to think what would have happened. I would have been totally out of my league. Unfortunately, that is true for many lawyers in many parts of the country who end up representing those charged with capital murders,” wrote Earley.

Earley praised the capabilities and experience of the lawyers in the attorney general’s office who fought to affirm death sentences. But, he said, “Many of the defense attorneys I saw go up against them were just simply outclassed.”

And for those who could mount strong appeals, the rules often precluded help. “Procedurally, the system is built to uphold convictions, not overturn them,” he wrote.

In his UR piece, Earley wrote about the case of Earl Washington Jr., a farm hand with an IQ of 63 convicted of a savage 1982 rape and murder in Culpeper for which he confessed — though quickly took the confession back. Washington came within nine days of execution.

DNA later not only proved Washington innocent, but also led to the 2007 conviction of Kenneth Tinsley, a rapist and the real killer.

Earley was the attorney general in 2000 when Gov. Jim Gilmore was considering what to do about the Washington case as the DNA test results came in.

“Our office ... had persuasive arguments as to why the conviction should stand. After all, he had confessed, he had legal representation at trial, and a jury and a judge had heard the evidence and found him guilty,” he wrote.

“But with each new and advanced forensic test, those arguments became weaker and weaker,” said Earley. In the end Gilmore pardoned Washington and it was the right thing to do, Earley wrote. “I was lagging behind him,” he added.

Earley concluded his essay with the Stinney case in South Carolina. Stinney, an African-American who weighed 95 pounds, was executed in 1944 for bludgeoning to death two white girls, 11 and 7. The youth was said to have admitted guilt in what a forensic psychologist recently said — because of his age, race and the nature of the interrogation — was a coerced, unreliable and false confession.

He was executed within 90 days of his arrest. Last year his conviction was vacated, but Earley noted it was an injustice that could not be corrected.

“The death penalty is like an unwelcome, embarrassing, high-maintenance guest that has stayed too long,” wrote Earley.

The Stinney case, he wrote, “was not due process; it was an electrocution with a few preliminary formalities.”

He concluded by reiterating he could no longer support the death penalty and, “Now, like an obnoxious reformed smoker, I do not think anyone else should either.”