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Richmond-Times Dispatch: Lawyer’s conduct in death-penalty case disputed

Posted: Sunday, September 29, 2013 12:00 am | Updated: 2:47 pm, Sun Sep 29, 2013. BY FRANK GREEN Richmond Times-Dispatch Did the man who prosecuted Earl Washington Jr. for rape and murder lie to save a death sentence that was slipping away, as Washington’s lawyers allege? Washington, exonerated in 2000, came within nine days of execution in 1985 and is the only person sentenced to death in Virginia who was later proved to be innocent. A complaint to the Virginia State Bar charged that, as Washington’s guilt first came under doubt, John C. Bennett, a former Culpeper commonwealth’s attorney, lied to the Virginia Attorney General’s Office in an effort to preserve Washington’s death sentence. According to an assistant attorney general who wrote a memo and a newspaper reporter, Bennett told them he had witnessed Washington’s disputed 1983 confession. Bennett wasn’t even in the same county when the confession happened. The previously undisclosed bar complaint against Bennett — and the confidential 2009 bar ruling dismissing it — were made available last week to the Richmond Times-Dispatch by one of Washington’s lawyers. The bar subcommittee report concluded, after a full investigation, that “the evidence available could not reasonably be expected to support any allegation of misconduct under a ‘clear and convincing’ evidentiary standard.” Bennett, who was the Culpeper commonwealth’s attorney until 1991 and is now in private practice, did not return several calls for comment last week, nor did he respond to a letter from The Times-Dispatch requesting comment on the same matter in 2006. Peter Neufeld, one of Washington’s lawyers and a co-founder of The Innocence Project, said, “What happened to the prosecutor in Earl’s case is one of the more disgusting inactions by a disciplinary committee that I have ever seen in the United States.” Robert T. Hall, another lawyer for Washington, said Bennett claimed he “witnessed something that he hadn’t in an effort to get an innocent man executed, and the state bar’s decision that this was not supported by clear and convincing evidence was just unfathomable.” “They bent over backwards to find excuses for his behavior,” Hall said of the bar subcommittee. But after reviewing the complaint and the subcommittee’s ruling, Leslie A.T. Haley, a former senior assistant ethics counsel for the state bar now doing ethics consulting, said the results were not unusual. “This comes down to what I see as a ‘he said, she said.’ The bar has to prove that a lawyer has violated one of the rules of professional conduct by a clear and convincing standard, which is a pretty high standard,” she said. The “clear and convincing” standard is higher than the “preponderance of the evidence” standard required in a civil trial, though lower than the “beyond a reasonable doubt” standard in a criminal trial. “This one, on these facts, I think is pretty hard to prove,” said Haley, adding that part of the problem is that there are only a limited number of people with firsthand knowledge of the situation. In 1993, John H. McLees Jr. wrote a detailed memo for then-Virginia Attorney General Stephen D. Rosenthal about his telephone conversation with Bennett in which McLees reported that Bennett said he was certain of Washington’s guilt because he watched him confess. On the one hand, she asked, “why would this assistant attorney general create this memo?” “But still ... that’s pretty much all you’ve got,” said Haley. That it took two years to resolve the complaint “tells me they tried to really dig for some other stuff and couldn’t really find anything to hang their hat on ... as evidence.” The controversy began in 1993 when then-Gov. L. Douglas Wilder was considering sparing Washington, a mentally challenged farmhand, from death by the electric chair after DNA evidence raised the possibility — but did not conclusively prove — Washington was innocent of a 1982 rape and murder in Culpeper. On Oct. 26, 1993, as Washington’s life hung in the balance, Bennett, who won Washington’s death sentence, called the Virginia Attorney General’s Office, apparently in response to its investigation of the clemency petition then pending before Wilder. McLees took the call from Bennett, and two days later he wrote a memorandum about the call and sent it to Rosenthal and other superiors. McLees wrote that after briefing Bennett on the DNA testing, “His most interesting comment was that there was no doubt whatsoever in his mind about Washington’s guilt, and he had never so much as turned over in his sleep during the entire 11 years concerning Washington’s sentence.” “The reason for this is that, although he never told anyone for fear of becoming a witness in the case, he was present in the Fauquier Sheriff’s Department office on the Sunday morning when Washington confessed.” “Bennett said it was as clear as could be from Washington’s demeanor, body language, tone of voice, etc., that he was getting an enormous load off his mind by confessing,” McLees wrote in the memo. Also, a June 2000 article in the Culpeper News quoted Bennett as saying he was sure of Washington’s guilt “based on everything I’ve learned in this case, including watching Earl Washington confess.” Wilder commuted Washington’s sentence to life in 1994. In 2000, after further DNA testing exonerated Washington, he was pardoned by then-Gov. Jim Gilmore. The testing implicated the real killer, who was convicted in 2007. In 2006, Washington won a $2.25 million judgment in a federal civil rights suit alleging that investigators fed him details about the crime during his “confession” while he was being held in Fauquier County. Testifying in the civil suit in April 2006, Bennett said that, while he remembered speaking with people at the attorney general’s office in 1993, he had no specific recollection of a conversation with McLees. Neufeld read the McLees memo to Bennett, who denied saying he witnessed the confession. “He has got the details jumbled up,” Bennett said of McLees. Bennett testified that any comments he made to the attorney general’s office about Washington’s demeanor concerned the observations of a jailor about Washington’s appearance before and after his confession in Fauquier County. Bennett also testified that he told the attorney general’s office that, when police began questioning Washington in Culpeper, he left because he was prosecuting the case and did not want to be a witness. McLees, said Bennett, “apparently … just got those facts sort of crisscrossed, and Fauquier confused with Culpeper and what happened there.” Bennett also denied telling the newspaper reporter that he witnessed Washington’s confession. Neufeld asked Bennett, “Would you have a sense that if an attorney lied to a deputy attorney general while a delicate decision is being made about whether someone should live or someone should be executed ... that it would be the kind of offense that the bar would suspend somebody for?” Bennett said that he was not sure but added, “Let me just say emphatically that, personally, no, an attorney should not do anything like that.” Testifying at the same 2006 trial, McLees said he had no independent recollection of the 1993 conversation with Bennett, aside from the memo he wrote for the attorney general two days afterward while it was still fresh in his mind. Asked whether there was any doubt in his mind that Bennett unequivocally witnessed Washington’s confession, McLees testified: “I’m confident (Bennett) said exactly what was in this memorandum.” Washington won the lawsuit. Afterward, Washington’s lawyers filed a misconduct complaint with the Virginia State Bar against Bennett for his alleged assertions that he witnessed Washington’s confession. The Dec. 20, 2006, complaint alleged Bennett lied about witnessing the confession to preserve the death sentence. It also alleged Bennett lied in court in 2006 when he denied making the remarks to McLees. Washington’s lawyers initially would not confirm they filed a bar complaint against Bennett in 2006, and the state bar could not confirm one had been filed. But this month, Hall received an independent ethics opinion that he said freed him to disclose the complaint and the bar subcommittee’s report. In the Jan. 14, 2009, report marked “PERSONAL AND CONFIDENTIAL,” a bar disciplinary subcommittee said it voted to dismiss the complaint after considering all the available evidence, including the McLees memo. No mention was made in the report of the 2000 newspaper story. Haley said that may be because the committee felt anything in the newspaper story isn’t credible enough to be introduced as evidence. “It’s just somebody has told a reporter information,” she said. In tossing the complaint out, the three-member subcommittee, among other things, said that the evidence did not show McLees “contemporaneously drafted his memorandum” about the conversation, an apparent reference to it being written two days after the call. The subcommittee report said there were “inaccuracies” in the McLees memorandum, but it only identified one — that Bennett was in Culpeper when Washington confessed, not in Fauquier. No one, however, alleged Bennett attended the confession, only that he lied about being there. The chairwoman of the subcommittee said Friday that she could not comment. The subcommittee ruled that the available evidence was not “clear and convincing” evidence of misconduct. This e-mail address is being protected from spambots. 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