With his decision in late November to spare the life of condemned killer Robin Lovitt, Virginia Gov. Mark R. Warner avoided the dubious distinction of presiding over the nation's 1,000th execution in the modern era of capital punishment. Instead, it fell to his neighbors in North Carolina, who put Kenneth Lee Boyd to death on Dec. 2.
Warner, a moderate Democrat, is expected to devote himself full-time to a run for the White House in 2008. But with a month left in his term as governor, the 51-year-old presidential hopeful is not out of the woods when it comes to messy questions of murder and justice in the American legal system. While the media focus on the pending execution of Stanley "Tookie" Williams, the notorious Crips gang leader seeking clemency in California for rehabilitating himself in prison, Warner finds himself embroiled in a struggle over the blatant miscarriage of justice. Before departing office, he must address no fewer than three major cases involving possible wrongful convictions in the Virginia courts.
There's not much Warner can do for Roger Keith Coleman. Virginia executed Coleman in 1992 for the rape and murder of his sister-in-law. But Warner says he'll decide whether to allow new DNA testing of evidence from the case, which could establish that Virginia executed an innocent man. Such a finding would have historic repercussions for the death penalty debate nationwide. Warner must also consider the fates of no less than five inmates who, more than likely, were wrongly convicted of murder. All five have clemency petitions sitting on the governor's desk.
In the case of the so-called Norfolk Four, four Navy sailors were sentenced to life in prison for a 1997 rape and murder. But a fifth man has since confessed to the crime and his DNA alone -- not that of the other four -- was found inside the victim.
The fifth petition, on Warner's desk for more than a year, is for another Virginia inmate whose case is a veritable textbook study of how justice can go awry. The case is that of Larry Donnell Fowlkes, who is serving what is likely to be a life sentence for a 1996 murder -- despite the fact that the Commonwealth of Virginia acknowledges he was nowhere near the scene of the crime.
Warner knows that a prerequisite to winning the modern presidency is to insist that he's a badass when it comes to criminals, particularly murderers. And what better way to prove it than by signing off on an execution or two -- or 152, as was the case with George W. Bush when he was governor of Texas. Shortly before commuting Lovitt's sentence, Warner was quick to remind voters in red-state Virginia -- which is second only to Texas in the number of people it has executed -- that he had previously denied clemency to 11 death row inmates. It is by now second nature for any Democratic presidential hopeful with a memory of Willie Horton, the furloughed Massachusetts murderer who many believe doomed the 1988 campaign of Gov. Michael Dukakis, to avoid any decision that could be construed as "soft on crime," or manipulated to the same end by an opponent. While still governor, the White House-bound Bill Clinton was the first Democrat to demonstrate that he'd imbibed that lesson when he returned to his home state from the campaign trail in 1992 for the controversial execution of a severely brain-damaged Arkansas death row inmate.
At the same time, Warner seems to appreciate that Americans are increasingly concerned that prosecutors, juries and courts don't always get it right. To date, 122 innocent people have been discovered on the nation's death rows, while scores of people -- 163 at last count, including eight in Virginia -- have used DNA to establish that they were innocent of crimes for which they'd been incarcerated.
Warner seemed to acknowledge some of these concerns in the Lovitt case. He said executing Lovitt would be problematic because a Virginia court clerk had allowed the destruction of DNA evidence that might have established the condemned man's innocence. The state, Warner said, "must ensure that every time this ultimate sanction is carried out, it is done fairly." Warner also said he was commuting Lovitt's sentence "to reaffirm public confidence in our justice system." And that is precisely the task that confronts him now with the Coleman case and the clemency petitions awaiting his attention, in particular that of Fowlkes.
The story of Fowlkes' bizarre odyssey, from arrest through the Virginia courts to prison, shows how the pursuit of justice can go so far off track -- throwing a poor and poorly represented defendant into the dark obscurity of the nation's penal system, with little if any chance of ever emerging. As is often true in cases of wrongful conviction, the devil is literally to be found in the details. What at first glance seems an indecipherable web of contradictory claims, the Fowlkes case ultimately comes down to the word of a single, highly suspect witness, Sheila Barbour Stokes, an incarcerated career criminal who, in exchange for her testimony, had a pending felony dropped and thereby avoided what could have been an additional 10 years in prison.
In his closing argument to jurors at Fowlkes' second murder trial in Nottoway County in southern Virginia (jurors deadlocked 7-5 in favor of acquittal in the first trial), prosecutor Mayo Gravatt acknowledged that his star witness came with a lot of baggage: "Sheila Barbour is not the kind of witness I'm happy to bring in court here and sit down in front of you and put under oath and have be a key witness in the case."
But Gravatt put her on the stand anyway, for the very simple reason that Sheila Barbour Stokes was really all he had. He had no physical evidence linking Fowlkes to the crime and he acknowledged in his closing arguments to the jury that at the time of the crime, Fowlkes was probably 30 miles from the scene of the murder attending a church service, where no less than a dozen witnesses, including a police officer, saw him. Only Stokes linked Fowlkes to the planning of the crime and the disposal of evidence. Gravatt's case was so thin, in fact, that he'd proposed a plea bargain, which would probably have resulted in a three- to five-year sentence, if Fowlkes would testify against the state's primary suspect, Bruce Allen. Fowlkes refused, insisting he knew nothing about the crime. Allen, who was identified by the surviving victim, is serving two life sentences for the crimes.
Without Sheila Stokes, Gravatt could not have even considered indicting Fowlkes. But why did she testify? Nottoway County court records strongly suggest that there was a deal. They show that a pending felony charge against Stokes was dismissed after she testified at Fowlkes' first trial. In addition, Gravatt failed to inform Fowlkes' defense of the deal until Stokes was literally on the witness stand testifying against Fowlkes, an apparent violation of the law. The jury, which almost certainly did not understand that there was a deal and that Stokes had a personal motive for testifying as she did, took just 40 minutes to find Fowlkes guilty of the brutal stabbing murder of Ida Bowlin and the robbery and attempted murder of her husband, Albert, in Crewe, Va. It took less than 10 minutes to send Fowlkes away for 45 years.
Equally important, the evidence suggests that Gravatt knew his star witness was committing perjury. Gravatt told jurors, "I want you to really study hard, each of you" a statement Stokes gave police in January 1996 in which she claimed Fowlkes confessed to her that he was in his car, outside the Bowlin home, when the murder and robbery took place. But Stokes' statement to police is completely contradicted by Gravatt's own admission that Fowlkes was not at the murder scene, but in church. Either Gravatt knew that Stokes was lying when she placed Fowlkes at the scene of the crime, or he believed that Fowlkes was stupid enough to tell Stokes he was involved in a murder when he wasn't. Unfortunately for Fowlkes, his lawyer failed to point up this contradiction to the jury. He also failed to call Stokes' brother who was prepared to testify that Stokes lied at Fowlkes' first trial when she said the perpetrators had planned the crime at his house.
Stokes' most incriminating statement at trial, that she helped Fowlkes clean blood from the rear seat of his car the day after the murder, would also seem inconsistent with Gravatt's admission that Fowlkes was in church when the crime was going down. At trial, Gravatt speculated to the credulous jurors that the perpetrators might have waited until Fowlkes could join them the following morning to dispose of the bloody evidence. But why would the murderers wait eight hours to get rid of hot evidence? And wouldn't the blood have dried by then? If so, how did it get all over Fowlkes' car? Why would they need Fowlkes, and why let him know where the incriminating evidence was dumped?
Fowlkes' lawyer never asked any of these questions, and Gravatt never volunteered any clarifications. Fowlkes' lawyer also failed to call to the stand Stokes' sister, who signed an affidavit saying she was with Sheila the whole day after the crime -- and that Sheila could not have been with Fowlkes.
Then there's the astonishing fact that the state's own forensic expert found no blood in Fowlkes' car. Once again, Fowlkes' lawyer didn't ask the expert to testify. Equally important, Stokes told police that she had used Dawn dish detergent to scrub the car. Given that the forensic analysis found no blood, the presence of a specific brand name detergent would have greatly enhanced Stokes' credibility, while its absence would have been very damaging. But when police sent Fowlkes' car to the forensic lab for analysis they apparently didn't bother to ask it to look for traces of the detergent, and no mention of it is made in the forensic report.
So why didn't Fowlkes' lawyer ask the most seemingly obvious questions or put up exculpatory witnesses? Shawn Armbrust, director of the Mid-Atlantic Innocence Project, which advocates on behalf of wrongfully convicted defendants, says lousy lawyers are a recurring theme in wrongful conviction cases, and "very common in states such as Virginia" that have no statewide defender system. "People assume that if you get a bad lawyer at trial it is corrected later in the process," says Armbrust. "But it actually dooms the defendant throughout the appeals process."
Although it would seem that Fowlkes was convicted on the basis of perjured testimony, it's hard to be certain because Stokes' credibility, highly questionable at the time of the trial, is now about as close to zero as is humanly possible. Despite repeated requests by Salon, Gravatt, the prosecutor, declined to answer any questions about the case. Likewise, Stokes, who is presently serving an eight-year sentence after pleading guilty to 29 felonies, including fraud and deceit, refused to discuss the case.
Meanwhile, Stokes has signed two contradictory affidavits. In the first, penned nearly five years after Fowlkes' conviction, she recanted her trial testimony in its entirety, admitting that her statement to police implicating Fowlkes "was false," that she'd never heard Fowlkes talk about the crime or plan the crime, and that she'd fabricated the story about helping Fowlkes clean blood from his car. Moreover, she admitted to cutting a deal for her testimony. "Mayo Gravatt told me that he could get the charges off of me if I help them. I was scared therefore I agreed to help." Then, a year after acknowledging that she'd committed perjury at trial, Stokes recanted her recantation. Perhaps not coincidentally, she had new charges pending against her at the time, which the state was kind enough to dismiss.
In any case, Stokes' initial confession of perjury came about four years too late for Fowlkes. Virginia law at the time gave a defendant only 21 days following conviction to introduce new exculpatory evidence. (To his credit, Warner worked to repeal this law, which was an affront to the most elemental notions of justice.) Meanwhile, a federal statute of limitations, enacted after the Oklahoma City bombing in order to speed up the execution process nationwide, set a one-year limit for appeals. Fowlkes' situation was further compromised by the fact that Virginia does not provide convicted felons with lawyers once their state appeals are complete. Fowlkes filed his own federal appeal and messed up, missing a filing deadline, which prevented him from ever having his evidence of innocence considered by a court of law.
Today Larry Fowlkes remains incarcerated at Virginia's Lawrenceville Correctional Center, in failing health. Diabetes and vascular disease led to the amputation of his left leg. Now 49, he continues to proclaim his innocence, but has exhausted all appeals. Fowlkes would probably be better off if he were there under a death sentence. With an execution date, the media might be more interested in his case. But Fowlkes has much in common with many of the innocents released from death row. His predicament appears to have been a result of lousy lawyering, questionable witness testimony, and a judicial system that has prevented him from gaining a full hearing on the evidence. It is, of course, unfortunate that no jury ever heard all of the evidence debated in open court. But that is precisely why the Founding Fathers provided for clemency.
A man at one extreme end of the debate over when and how to grant it currently resides in the Oval Office. Before he was elected president in 2000, George W. Bush denied clemency as governor of Texas to 152 men and women. Bush touted his high moral "character" and assured skeptical voters that he had reviewed each and every death penalty case "carefully" and "thoroughly." It is now known that Bush systematically rubber-stamped executions and repeatedly ignored evidence that made a case for clemency, including evidence of innocence. At the other extreme, Illinois Gov. George Ryan, also a Republican, commuted the death sentences of 167 death row inmates after he became convinced that the justice system was fatally flawed. Ryan noted that he had personally come within hours of signing off on the execution of an innocent man.
In a country where two-thirds of the population continues to support capital punishment, it is not clear that most would support either the Bush or Ryan approach. What is clear is that the seemingly endless reports of wrongful convictions have had an impact on American opinion and on jurors fearful that they could make a lethal mistake. Death sentences are down by half since the late 1990s, while executions are down 40 percent from their peak in 1999. One Gallup poll found that 73 percent of Americans believed an innocent person had been executed in the U.S. in the last five years. Just last month, Virginia voters defied the state's political profile by electing a Democrat and death penalty opponent, Lt. Governor Tim Kaine, to replace Warner when his term ends. And even some of the country's most radical conservatives, such as Pennsylvania Sen. Rick Santorum -- who has voted to make it harder for prisoners like Fowlkes to have their appeals heard -- have expressed uneasiness about the death penalty because of the potential for a miscarriage of justice. "I felt very troubled about cases where someone may have been convicted wrongly," Santorum said earlier this year.
It is no longer self-evident that Americans feel comfortable with a cavalier approach to clemency when people are literally pleading for their lives and liberty. As Warner contemplates the White House, more Americans may be looking for a politician who is not just tough on crime, but who is serious about insuring that our system of justice works -- and when it doesn't, has the courage to set it right.