William Truesdale, an Alexandria
City sheriff's deputy, was shot with his own gun by Wilbert Evans on
January 27, 1981 while leading Evans back to jail after a hearing in
the adjacent courthouse.
Evans was on a brief
flight of freedom, running around the Old Town area of the city.
When an officer in pursuit attempted to arrest Evans, the escapee
pointed the gun he had taken from Truesdale at the approaching
officer. Evans pulled the trigger -- but the gun jammed and he was
quickly arrested thereafter.
Two who were executed: Wilbert
On the day of his execution in October 1990,
Wilbert Lee Evans stuffed into his pocket a copy of a U.S. Supreme
Court justice's plea to spare his life, said goodbye to his lawyers
and walked to the death chamber.
The execution became known as one of Virginia's
worst. When the first 55-second jolt of electricity hit Evans, blood
flowed from under the leather death mask, streamed down his chin and
soaked his shirt. Bloody froth bubbled on his lower lip. Officials
said the chair worked fine - Evans just had a nosebleed when he
lunged against the mask.
Perhaps the opinion by Justice Thurgood Marshall
gave Evans some solace. Calling the impending execution "dead wrong,''
Marshall said the case showed the fallacy of the Supreme Court's
premise ``that given sufficient procedural safeguards, the death
penalty may be administered fairly and reliably.''
On his copy, Evans wrote: "Please bury this with
Jonathan Shapiro, Evans' appeals lawyer, still
has problems talking about the case. "How could our justice system
allow this to happen? I wondered, for a while, whether I would leave
There was no doubt that Evans killed an
Alexandria sheriff's deputy during a 1981 escape attempt. Evans
called it an accident. The jury called it murder.
Yet the jury didn't know that the prosecution
took an illegal turn. During sentencing, Alexandria Commonwealth's
Attorney John Kloch argued for death, saying Evans posed a menace to
society. To prove it, he used records showing that Evans had seven
prior convictions, including assault on a police officer.
Based on this, the jury recommended death. But
most of those convictions never happened. Documents showed Kloch
knew all along.
In 1982, Shapiro learned that three of the "convictions''
were actually one, because of computer error. The charge of
attacking a police officer had been dropped on appeal. Another
charge was not admissible because Evans had not been represented by
Thus, only two of the seven "convictions'' were
real. "Wilbert's criminal record looked two times as bad as it
really was,'' said William H. Wright Jr., former staff attorney for
the Virginia Capital Representation Resource Center. "No wonder the
jury thought he was a menace.''
Then, Shapiro found a memo from Kloch's assistant
- dated two months before trial - explaining the flaws. "It was the
smoking gun,'' Shapiro said.
Shapiro told the attorney general's office and
awaited the state's admission of error. He thought Evans' sentence
would be dropped to life.
It was not until March 28, 1983 - 10 months after
Shapiro first called the records bogus - that the state admitted
error. That same day, then-Gov. Charles Robb signed emergency
legislation allowing the state to resentence prisoners.
Shapiro challenged the state's right to
resentence Evans. Now, in addition to the prosecutor's use of false
records, Shapiro accused the state of stalling its admission of
error until the new sentencing law took effect.
But in September 1983, a judge ruled that there
was no willful misconduct by prosecutors or the attorney general's
In February 1984, a new jury resentenced Evans.
This time, Kloch introduced evidence not used in the first trial,
including charges - never tried - that Evans killed a man in 1978
during an argument over a card game. Once again, the jury sentenced
Evans to death.
On May 31, 1984 - fewer than three months later -
Evans protected 12 guards and two nurses from a half-dozen knife-wielding
inmates during the breakout at Mecklenburg Correctional Center, the
largest death row escape in U.S. history.
Several Mecklenburg guards later said they owed
their lives to Evans. But the attorney general refused to side with
Evans' lawyers, who argued that this showed Evans no longer was a
menace to society. His clemency plea went to then-Gov. L. Douglas
For Evans, the timing was as bad as it could get.
Wilder, who once opposed the death penalty, had campaigned the
previous year as a supporter. Also, a national campaign for a
retrial for Joe Giarratano, whose execution was scheduled soon after
Evans', made it difficult politically for Wilder to consider
clemency for Evans, too. Giarratano's defenders included Amnesty
International and columnist James J. Kilpatrick. Evans just had his
lawyers and family.
In the end, Giarratano got the nod; Evans, the
executes killer of deputy
The New York
The killer of a sheriff's
deputy was executed in Virginia tonight
after the United States Supreme Court denied
a stay and Gov. L. Douglas Wilder declined a
request for clemency.
The inmate, Wilbert Lee
Evans, died in the electric chair at the
State Penitentiary here shortly after 11 P.M.
Mr. Evans's execution was
the 141st in the United States since the
Supreme Court reinstated the death penalty
in 1976, and the 10th in Virginia.
Shooting in Courthouse
Mr. Evans was sentenced
to die for shooting Deputy Sheriff William
Truesdale to death on Jan. 27, 1981, in the
courthouse in Alexandria, N.C.. The deputy
was returning him to the jail in Alexandria
after a hearing when Mr. Evans grabbed Mr.
Truesdale's gun and shot him.
Mr. Evans was in prison
on an assault charge in North Carolina and
had been brought to Alexandria to testify
against another prisoner.
The Court issued its
ruling at 7:30 P.M., with only Justice
Thurgood Marshall, who opposes capital
punishment in all cases, dissenting.
Marshall said, ''A system of capital
punishment that would permit Wilbert Evans's
execution, notwithstanding as-to-now
unrefuted evidence showing that death is an
improper sentence, is a system that cannot
His lawyers based their
final efforts to save him on his actions
during a breakout by six death row inmates
at the Mecklenburg Correctional Center in
May 1984. Mr. Evans did not join the
escapees, and his lawyers contended he had
intervened to save guards and nurses from
In a letter hand-delivered
to the Governor's office this afternoon, the
lawyers presented evidence from an internal
State Police and Corrections Department
report on the escape. The letter included
excerpts of statements from guards and
nurses that Mr. Evans had protected them
during the escape. One nurse said he stopped
two inmates from molesting her.
None of the inmates who
escaped are still at large. Three have been
executed; the other three remain on death
1990. Virginia. Wilbert Lee Evans. Electrocution.
was hit with the first burst of electricity, blood spewed from the
right side of the mask on Evans's face, drenching Evans's shirt with
blood and causing a sizzling sound as blood dripped from his lips.
Evans continued to moan before a second jolt of electricity was
applied. The autopsy concluded that Evans suffered a bloody nose
after the voltage surge elevated his high blood pressure.
Bad Prosecutor, No Consequences
May 11, 2005
Several moons ago Blonde Justice
asked for stories about prosecutors behaving badly.
I promised a story “about a prosecutor who
suppressed and lied about evidence, was caught red-handed
doing it, but managed to get a guy executed despite
these crimes, and now sits as a trial court judge in
a nearby U.S. city.” Well, I wasn't kidding. I
finally dug out a few of my notes on the incredible
case of Wilbert Lee Evans. Justice Marshall
summarized the relevant facts pretty well in his
dissent from the Supreme Court's denial of
certiorari to reconsider Evan's death sentence:
Wilbert Lee Evans was convicted of capital
murder in April 1981. At his sentencing hearing,
the State urged the jury to recommend the death
sentence based on Evans' “future dangerousness.”
To prove future dangerousness, the State relied
principally upon the records of seven purported
out-of-state convictions. The State's prosecutor
later admitted that he knew, at the time he
introduced the records into evidence, that two
of them were false. One of the seven “convictions,”
for assault on an officer with a deadly weapon,
had been dismissed on appeal. Another, for
engaging in an affray with a deadly weapon, had
been vacated on appeal, and Evans had been
reconvicted in a trial de novo; the conviction
for one crime was, however, counted as two
convictions. After considering Evans' prior “history,”
the jury determined that there was a probability
that he would commit criminal acts of violence
that would constitute a continuing serious
threat to society, and it recommended the death
penalty based solely upon its finding of future
dangerousness. 228 Va. 468, 323 S. E.2d 114
(1984). Evans was sentenced to death on June 1,
Virginia, 471 U.S. 1025
(1985) (some internal citations omitted).
That opinion goes on to describe
how Virginia law at the time of Evans' original
conviction said that “when a capital defendant's
right to a fair and impartial jury is violated
during the sentencing phase of trial, a death
sentence must be commuted to life imprisonment.”
This was because the law also said that only the
jury that heard the guilt or innocence phase of the
trial could impose punishment, but since the jury
was tainted by some sort of error in the first phase,
it could not effectively change the punishment, and
therefore the only fair solution in death penalty
cases was to commute the sentence to life. However,
the law changed on March 28, 1983 “to allow for
resentencing by a different jury after a death
sentence was set aside.” Coincidentally, the
prosecutor who knew he had committed fraud in the
original Evans trial in 1981 decided on that very
day—March 28, 1983—to admit to his crime. This means
that not only did this prosecutor willfully and
knowingly deceive a judge and jury in order to
convict Evans, but he then kept his fraud secret
until the very day when his admission would no
longer be able to save Evans life. Can you say bad,
bloodthirsty, evil prosecutor? I can.
Here's how Justice Marshall
dispassionately describes this:
"At a hearing
to consider the propriety of resentencing Evans,
the prosecutor at Evans' trial admitted that he
knew the evidence that he introduced at the
sentencing hearing was false. The judge then
ordered a new sentencing hearing. A new jury
recommended the death penalty, and petitioner
was again sentenced to death."
Um, why wasn't this prosecutor
The story only gets more awful
from there. Much of it is summarized in Marshall's
1990 dissent to the Supreme Court's denial of
certiorari to consider staying Evans' execution.
Evans v. Muncy, 498 U.S. 927 (1990). The short
story is that during the nine years Evans was in
prison, he was a model inmate and even acted
heroically to help stop a prison riot. “According to
uncontested affidavits presented by guards taken
hostage during the uprising, Evans took decisive
steps to calm the riot, saving the lives of several
hostages, and preventing the rape of one of the
nurses.” This was rather important in light of the
fact that his death penalty was based on the jury's
finding of “future dangerousness.” A guy who steps
in to stop a riot doesn't sound too dangerous,
(Tangent: This pro-death group
provides a PDF file of a story about Evans' actions
in the riot. The group's point is that Evans can't
be a hero because he killed a man. That story is
interesting for the added detail it provides about
Evans' case, but my point here is just to draw
attention to the irony of the pro-death site using
an animated image of the scales of justice going up
and down constantly. They're right: So long as the
state is killing people, those scales of justice
will never balance.)
But none of the
evidence in Evans' favor mattered. Viriginia killed
Evans on October 17, 1990. It apparently did a great
job of it, too:
"When Evans was hit with the
first burst of electricity, blood spewed from
the right side of the mask on Evans's face,
drenching Evans's shirt with blood and causing a
sizzling sound as blood dripped from his lips.
Evans continued to moan before a second jolt of
electricity was applied. The autopsy concluded
that Evans suffered a bloody nose after the
voltage surge elevated his high blood pressure."
But that's not the end of the
story. The very best part of this whole horrible
tale of American justice in action is that the
intentionally fraudulent prosecutor was not
disbarred. In fact, I don't think he was disciplined
at all. In fact, he now sits as a judge
hearing criminal cases in the same
jurisdiction where he committed his horrible crimes.
So there you have it: A true and
chilling tale of a very very bad prosecutor who
suffered no consequences for his egregious behavior.
I've seen him in court and I secretly suspect he is
an emotionally broken man because he's being
devoured from the inside by guilt from what he's
done, but that's probably just wishful thinking on
Sheriff William G. Truesdale
Alexandria Sheriff's Office
End of Watch: Tuesday, January 27, 1981
Cause of Death: Gunfire
Date of Incident: Tuesday, January
Weapon Used: Officer's handgun
Suspect Info: Executed
Deputy Truesdale was shot and killed with his own
weapon while transporting prisoners from court back
to the jail. One of the prisoners overpowered Deputy
Truesdale and shot him with his own weapon. The
suspect then shot his handcuffs off and attempted to
flee but was immediately apprehended.
suspect was sentenced to death in April 1981 and
executed on October 17, 1990.
Deputy Truesdale was survived by his wife and three
The Officer Down Memorial Page -
U.S. Supreme Court
471 U.S. 1025
Wilbert Lee EVANS
Supreme Court of the United States
April 15, 1985
On petition for writ of certiorari to the Supreme
Court of Virginia.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
I continue to adhere to my view that the death
penalty is under all circumstances cruel and unusual punishment
forbidden by the Eighth and Fourteenth Amendments, and I would
vacate the judgment of the Supreme Court of Virginia insofar as it
left undisturbed the death sentence imposed in this case. Gregg v.
Georgia, 428 U.S. 153, 231 , 2973 (1976) (MARSHALL, J ., dissenting).
However, even if I believed that the death penalty could
constitutionally be imposed under certain circumstances, I would
grant certiorari to decide the constitutional validity of the death
sentence imposed here.
Petitioner Wilbert Lee Evans was convicted of
capital murder in April 1981. At his sentencing hearing, the State
urged the jury to recommend the death sentence based on Evans' "future
dangerousness." To prove future dangerousness, the State relied
principally upon the records of seven purported out-of-state
convictions. The State's prosecutor later admitted that he knew, at
the time he introduced the records into evidence, that two of them
were false. App. to Pet. for Cert. 50a-52a. One of the seven "convictions,"
for assault on an officer with a deadly weapon, had been dismissed
on appeal. Another, for engaging in an affray with a deadly weapon,
had been vacated on appeal, and Evans had been reconvicted in a
trial de novo; the conviction for one crime was, however, counted as
two convictions. 1 After considering Evans' prior "history," the
jury determined that there was a probability that he would commit
criminal acts of violence that would constitute a continuing serious
threat to society, see Va.Code 19.2-264.4 C (1983), and it
recommended the death penalty based solely upon its finding of
future dangerousness. 228 Va. 468, 323 S. E.2d 114 (1984). Evans was
sentenced to death on June 1, 1981.
On October 16, 1981, while Evans' direct appeal
was pending, the Supreme Court of Virginia ruled that, when a
capital defendant's right to a fair and impartial jury is violated
during the sentencing phase of trial, a death sentence must be
commuted to life imprisonment. Patterson v. Commonwealth, 222 Va.
653, 283 S.E.2d 212 (1981). The court premised its decision on a
construction of the then-existing death-penalty statute under which
only the jury that finds a capital defendant guilty can fix his
punishment. Because the original jury, tainted by the constitutional
error, could not be reconvened to resentence the defendant, the
death sentence had to be reduced automatically to life imprisonment.
Id., at 660, 283 S.E.2d, at 216.
This ruling was in effect when the Virginia
Supreme Court considered Evans' direct appeal. Therefore, had that
court known of the error in the sentencing hearing and vacated Evans'
death sentence, he would very likely have received a life sentence.
2 But the State not only failed to confess its error, it listed all
the purported convictions, including the erroneous ones, in its
brief. App. to Pet. for Cert. 42a. In sustaining Evans' death
sentence, the State Supreme Court relied, in part, on this
inaccurate record. Id., at 31a. When Evans petitioned this Court for
a writ of certiorari, the State again relied on the misleading
records of convictions in its brief in opposition. Id., at 46a.
Certiorari was denied. 455 U.S. 1038 (1982).
The State did not notify Evans that it would
confess its error regarding the false evidence until March 28, 1983.
App. to Pet. for Cert. 73a. On that day, the Virginia Governor
signed into law a bill that amended the state death-penalty statute
to allow for resentencing by a different jury after a death sentence
was set aside, thus effectively overruling Patterson. See Va.Code
19.2-264.3 C (1983). The State subsequently confessed error to the
trial judge on April 12, 1983. At a hearing to consider the
propriety of resentencing Evans, the prosecutor at Evans' trial
admitted that he knew the evidence that he introduced at the
sentencing hearing was false. The judge then ordered a new
sentencing hearing. A new jury recommended the death penalty, and
petitioner was again sentenced to death.
In Napue v. Illinois, 360 U.S. 264 ( 1959), this
Court reversed a conviction obtained through the use of false
evidence that was known to be false by representatives of the State.
Since Napue, this Court has adhered to the principle that a
conviction obtained by the knowing use of false evidence is
fundamentally unfair. See, e.g., United States v. Agurs, 427 U.S.
97, 103 , 2397 ( 1976); Miller v. Pate, 386 U.S. 1, 7 , 788 ( 1967).
The rule of Napue is undoubtedly applicable to the sentencing phase
of a capital trial. In this case, the prosecutor admitted that he
knowingly introduced false evidence at Evans' sentencing hearing to
demonstrate "future dangerousness." Evans was therefore deprived of
the fundamental fairness due him under the Fourteenth Amendment.
To remedy this injury, the state court ordered a
new sentencing hearing free from the taint of false evidence. This
remedy, however, was inadequate to undo the harm suffered by Evans.
For the State compounded its original misconduct by concealing the
deception during both Evans' direct appeal and his petition for
certiorari to this Court. Had the State honestly confessed the
error, petitioner's sentence would almost certainly have been
commuted to life imprisonment under the then-existing statute.
Instead, the State did not confess error until nearly two years
after the original death sentence had been imposed, by which time
the death-penalty statute had been amended.
The court below ruled that, even assuming that
the prosecutor's handling of the sentencing hearing involved serious
prosecutorial misconduct, the State was not barred from seeking the
death penalty a second time. In doing so, it relied on the holding
in United States v. Morrison, 449 U.S. 361 (1981), that drastic
remedies should not be used to redress "deliberate" and "egregious"
violations of constitutional rights "absent demonstrable prejudice,
or substantial threat thereof," to the defendant. Id., at 365. The
court concluded that Evans' resentencing hearing removed any
prejudice. But the court considered only the prejudice suffered by
Evans at the initial sentencing. It failed to account for the harm
done to Evans afterwards, during his direct appeal. Had the State
not continued to rely on the false evidence, very likely the death
sentence would have been commuted to life imprisonment.
The State argues, nevertheless, that this Court
cannot consider the harm done to Evans by its conduct during the
appeal. It directs our attention to the finding by the trial judge
that the State did not delay its confession of error until after the
death-penalty statute was amended just to have a second chance to
sentence Evans to death. App. to Pet. for Cert. 20a. This argument
misses the point. Regardless of its purpose in regard to the
amendment, the State's continued, knowing use of false evidence
during the direct appeal and petition for certiorari, and its
failure to disclose this misconduct, constituted egregious conduct
that seriously harmed Evans. 3
To my mind, the only way to remedy the federal
constitutional violation Evans has suffered would be for the
Virginia courts to consider, nunc pro tunc, how Patterson would have
applied to this case. I would grant the petition for certiorari to
consider whether the court below was constitutionally obligated to
make this inquiry. Accordingly, I dissent from the denial of
[ Footnote 1 ] In addition, several of the other
convictions had been obtained when Evans was without the benefit of
counsel. App. to Pet. for Cert. 3a- 4a.
[ Footnote 2 ] In its brief in opposition, the
State urges that the opinion of the Virginia Supreme Court implied
that the court would not have applied the Patterson rule to Evans'
sentence. A fair reading of the opinion below, however, indicates
that the court was not rejecting Evans' contention that Patterson
would have controlled his case had it not been legislatively
overruled; rather, the court was rejecting Evans' ex post facto
argument, which was based on the subsequent overruling of Patterson.
See 228 Va. 468, 476-477, 323 S.E.2d 114, 118-119 (1984).
[ Footnote 3 ] Further, whether the delay of
nearly two years in confessing error was intentional or merely
negligent has no bearing on the degree of prejudice suffered by
Evans. "Clearly, a deliberate attempt by the government to use delay
to harm the accused, or governmental delay that is 'purposeful or
oppressive,' is unjustifiable. . . . The same may be true of any
governmental delay that is unnecessary, whether intentional or
negligent in origin." Dickey v. Florida, 398 U.S. 30, 51 , 1576
(1970) (BRENNAN, J., concurring).
Nor does it matter whether the state attorney who
appeared at the sentencing hearing, and who admitted that he knew
the evidence on which the State relied was false, took part in
preparing the State's briefs in the Virginia Supreme Court or in
this Court. The prosecutor's office is an entity, not just a group
of isolated individuals, and the prosecutor is responsible for
assuring that relevant information is communicated among the lawyers
in the office. See Giglio v. United States, 405 U.S. 150, 154 , 766
(1972); Moore v. Illinois, 408 U.S. 786, 810 , 2575 (1972) (MARSHALL,
J., concurring in part and dissenting in part).
881 F.2d 117
Wilbert Lee Evans, Petitioner-appellant,
Charles Thompson, Superintendent, Respondent-appellee
United States Court of Appeals,
Argued March 9, 1989.
Decided Aug. 2, 1989.
Rehearing and Rehearing In Banc Denied Aug. 28, 1989
Before HALL and WILKINSON,
Circuit Judges, and DOUMAR, United States
District Judge for the Eastern District of
Virginia, sitting by designation.
WILKINSON, Circuit Judge:
was convicted of capital murder and
sentenced to death. Following a confession
of error by the prosecution, he was
resentenced to death by a new jury.
Petitioner contends that his resentencing
was barred by the Ex Post Facto Clause, the
Equal Protection Clause, and the Due Process
Clause. He further argues that during
resentencing he was denied his
constitutional right to confront and
cross-examine witnesses and that the trial
judge improperly instructed the jury.
Finally, he claims ineffective assistance of
counsel both on direct appeal and during his
district court rejected petitioner's claims.
27, 1981, petitioner Wilbert Lee Evans shot
and killed Deputy Sheriff William Truesdale
while attempting to escape from state
custody. Truesdale was escorting petitioner,
at the time a North Carolina prisoner, to
Alexandria, Virginia, where he was to
testify as a witness for the Commonwealth of
Virginia. Petitioner had pretended to be a
willing witness for the Commonwealth for the
sole purpose of escaping during his
transportation from North Carolina to
Virginia. He planned to kill anyone who
attempted to prevent his escape and acted on
this intent when he killed Truesdale.
1981, petitioner was convicted of capital
murder and sentenced to death in the Circuit
Court of Alexandria, Virginia. The Supreme
Court of Virginia affirmed his conviction
and death sentence on December 4, 1981, 222
Va. 766, 284 S.E.2d 816. On March 22, 1982,
the Supreme Court denied certiorari.
1982, petitioner filed a petition for a writ
of habeas corpus in Alexandria Circuit Court.
He amended his petition in May 1982 and
again in December 1982.
12, 1983, the Commonwealth formally
confessed error in petitioner's sentencing
proceedings and acknowledged that his death
sentence should be vacated because erroneous
evidence of his prior convictions had been
admitted at trial. The circuit court vacated
petitioner's sentence and directed that a
hearing be held to determine whether
petitioner should be resentenced by a new
jury or have his sentence reduced to a life
term. Following a determination on October
12, 1983 that resentencing under the amended
statute could proceed, the court impaneled a
new jury which heard evidence of
petitioner's history of violent criminal
conduct. That jury recommended the death
penalty based upon a finding of petitioner's
"future dangerousness." On March 7, 1984,
the trial court imposed the death penalty.
The Virginia Supreme Court affirmed the
sentence and the United States Supreme Court
1985, petitioner filed a third amended
petition for a writ of habeas corpus in
Alexandria Circuit Court. The circuit court
dismissed his petition on May 19, 1986. The
Virginia Supreme Court denied review as did
the United States Supreme Court.
5, 1987, petitioner filed for a writ of
habeas corpus in the Eastern District of
Virginia. In response to petitioner's
request for discovery of the Commonwealth's
files, the court conducted an in camera
review of the files and, finding nothing
relevant to petitioner's assertions, denied
his request. On August 4, 1988, the court
rejected Evans' petition.
contends there are three bars to his
resentencing: A) the Ex Post Facto Clause;
B) the Equal Protection Clause; and C) the
Due Process Clause. We address each argument
28, 1983, Virginia enacted emergency
legislation, amending its procedures for
trial by jury in capital cases to permit
capital resentencing by a newly impaneled
jury where a prior death sentence was
vacated due to sentencing errors. Va.Code
Ann. Sec. 19.2-264.3C. Prior to this
amendment, if the Commonwealth failed to
secure a valid death sentence due to errors
in the sentencing process it was foreclosed
from seeking capital resentencing and the
defendant received an automatic sentence of
life imprisonment. Patterson v. Commonwealth,
222 Va. 653, 283 S.E.2d 212 (1981).
Petitioner contends that to resentence him
to death pursuant to the March 1983
legislation, when both his offense and trial
occurred before that date, retroactively
deprives him of his right to have his death
sentence converted to life imprisonment. We
hold, however, that no violation of the Ex
Post Facto Clause occurred.
Post Facto Clause exists to assure
individuals fair notice of the nature and
consequences of criminal behavior and to
prevent the alteration of preexisting rules
subsequent to the commission of an act. Two
elements must exist for a law to fall within
the ex post facto prohibition: 1) the law "must
be retrospective, that is, it must apply to
events occurring before its enactment," and
2) "it must disadvantage the offender
affected by it." Weaver v. Graham, 450 U.S.
24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17
(1981) (footnotes omitted). Central to the
ex post facto inquiry is whether the law
merely changes " 'modes of procedure which
do not affect matters of substance,' " and
hence is permissible; or whether it impacts
on defendant's " 'substantial personal
rights,' " and thus is prohibited. Dobbert
v. Florida, 432 U.S. 282, 293, 97 S.Ct.
2290, 2298, 53 L.Ed.2d 344 (1977), quoting
Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct.
68, 70 L.Ed. 216 (1925). "[N]o ex post facto
violation occurs if the change in the law is
merely procedural and does 'not increase the
punishment, nor change the ingredients of
the offence or the ultimate facts necessary
to establish guilt.' " Miller v. Florida,
482 U.S. 423, 107 S.Ct. 2446, 2452-53, 96
L.Ed.2d 351 (1987), quoting Hopt v. Utah,
110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed.
262 (1884). See also United States v.
Juvenile Male, 819 F.2d 468, 470-71 (4th
Cir.1987); United States v. Mest, 789 F.2d
1069,1071 (4th Cir.1986).
amendment does no more than change the
procedures surrounding the imposition of the
death penalty. It provides only that if a
capital sentence is set aside, then a
resentencing before a new jury can be held.
When the offense was committed, the "willful,
deliberate and premeditated killing of a law-enforcement
officer ... for the purpose of interfering
with the performance of his official duties"
was an offense for which the death penalty
could be imposed. See Va.Code Ann. Secs.
18.2-31(f); 18.2-10(a). Fair warning of
punishment was thus afforded petitioner. The
change in Sec. 19.2-264.3C was merely an "adjustment[
] in the method of administering [petitioner's]
punishment that [was] collateral to the
penalty itself." Evans v. Commonwealth, 228
Va. 468, 323 S.E.2d 114, 119 (1984).
In a case
analogous to the present one, Dobbert v.
Florida, 432 U.S. 282, 97 S.Ct. 2290, 53
L.Ed.2d 344 (1977), a capital sentencing
statute in effect when Dobbert committed
murder was later held to be invalid. Dobbert,
who had been sentenced to death pursuant to
a subsequent statute, under which the judge
had overruled the jury's recommendation of
life imprisonment, argued that application
of the new sentencing law violated his
substantial rights. The Court concluded that
ex post facto concerns were satisfied
because the applicable statute when Dobbert
committed murder warned him of the penalty
Florida prescribed for first-degree murder.
Id. at 298, 97 S.Ct. at 2300. The test of
whether a change in law ran afoul of the Ex
Post Facto Clause was not whether it worked
to the detriment of a particular defendant.
Rather, it was whether the changes "made
criminal a theretofore innocent act," or "aggravated
a crime previously committed," or "provided
greater punishment," or "changed the proof
necessary to convict." Id. The Virginia
amendment neither increased the punishment
attached to petitioner's crime, nor altered
the ingredients of the offense, nor changed
the ultimate facts necessary to establish
petitioner's guilt. It thus survives
petitioner's ex post facto challenge.
Petitioner's reliance on Kring v. Missouri,
107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506
(1883), is misplaced. Unlike in Kring, the
petitioner here has not been convicted of a
lesser offense for which the death penalty
was not authorized, nor has he been
acquitted of any offense for which the death
penalty was authorized. Moreover, unlike
Kring, the petitioner was not deprived of a
defense available to him when he committed
murder. Kring simply provides that if at the
time of the offense, a defendant is on
notice he can never be subjected to a death
sentence, imposition of a death sentence
violates the Ex Post Facto lause. Here
petitioner was on notice when he murdered
Deputy Sheriff Truesdale that the imposition
of death was a possible penalty.
contends that the new Virginia law abrogated
his right to be sentenced by the same jury
which decided his guilt. He argues that a
juror who sat through both phases of a
capital trial might entertain doubts which,
though not enough to defeat conviction,
might convince him that the ultimate penalty
should not be exacted. "Residual doubts" at
the penalty stage of a capital trial,
however, are constitutionally insignificant.
Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct.
2320, 2327 n. 6, 101 L.Ed.2d 155 (1988).
Moreover, it is possible that a juror less
familiar with first-hand evidence of the
crime and, having not just found petitioner
guilty, may be less inclined to impose the
Virginia amendment represents a continuing
effort by the Virginia Supreme Court,
Patterson v. Commonwealth, 222 Va. 653, 283
S.E.2d 212 (1981), and the Virginia
legislature to balance a defendant's right
to fair sentencing with society's interest
in not alleviating the consequences of
criminal acts when a sentencing error occurs.
See Burks v. United States, 437 U.S. 1, 15,
98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978). It
promotes the basic aspiration of criminal
justice to achieve results that are
error-free. The Virginia Supreme Court has
recognized the ameliorative purposes of the
the new law provides for
impanelling a new jury, free of any taint
arising from errors during the first trial,
to redetermine the defendant's punishment. A
defendant convicted of capital murder is
entitled to a fair and impartial
determination of his punishment: he will not
be heard to complain that a change in the
law which protects that right is not wholly
beneficial to him.
S.E.2d at 119.
Post Facto Clause does not confer upon this
defendant an unalterable right to be
sentenced by the jury which found his guilt
or never to be resentenced in any fashion.
To confer such a right would have serious
implications for the workings of our federal
system. That system presupposes that states
will routinely undertake to improve their
methods of jury selection, their rules of
evidence, the availability of appeals and
post-conviction proceedings, and other
procedures of their criminal justice systems.
To hold that every change with an arguable
adverse impact upon the outcome of a
criminal case has ex post facto implications
would seriously inhibit this process of
reform, because legislation generally has an
effective date of enactment independent of
the date of the commission of an act. The
elusive nature of the ex post facto
prohibition derives from the fact that law
does and should evolve. The Supreme Court
has long emphasized that "the accused is not
entitled of right to be tried in the exact
mode, in all respects, that may be
prescribed for the trial of criminal cases
at the time of the commission of the offence
charged against him." Thompson v. Utah, 170
U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061
(1898). We reject petitioner's attempt to
create such a right in this instance.
also argues that the Equal Protection Clause
bars his capital resentencing. He claims
that he and the defendant in Patterson v.
Commonwealth, 222 Va. 653, 283 S.E.2d 212
(1981), who received an automatic sentence
of life imprisonment at his resentencing,
were identically situated in all respects,
except that Patterson's death sentence was
vacated prior to enactment of the amendment.
Treating him differently than Patterson, he
contends, did not rationally further any
legitimate state objective.
We find no
merit to this contention. Because capital
defendants are not a suspect class for equal
protection purposes, Williams v. Lynaugh,
814 F.2d 205, 208 (5th Cir.1987),
legislative classifications must be presumed
valid and sustained if they are "rationally
related to a legitimate state interest."
City of Cleburne, Texas v. Cleburne Living
Center, Inc., 473 U.S. 432, 440, 105 S.Ct.
3249, 3254, 87 L.Ed.2d 313 (1985). In making
the rational basis inquiry, we must
determine if classifying Patterson and
petitioner differently has a " 'fair and
substantial relation to the object of the
[1983 amendment].' " Eisenstadt v. Baird,
405 U.S. 438, 447, 92 S.Ct. 1029, 1035, 31
L.Ed.2d 349 (1972), quoting Reed v. Reed,
404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254,
30 L.Ed.2d 225 (1971).
purpose of the 1983 amendment is
straightforward: to establish new procedures
for resentencing in capital cases where a
prior death sentence is vacated. Like
Florida in Dobbert, the Commonwealth "had to
draw a line at some point," Dobbert, 432
U.S. at 301, 97 S.Ct. at 2302, and to apply
the amendment only to those defendants whose
sentences were vacated following the
amendment's enactment is entirely rational.
As the district court recognized, it ties
the amendment's application to the event
which necessitates resentencing: vacating
the original sentence. Accordingly,
classifying petitioner and Patterson
differently is permissible.
further argues that prosecutorial misconduct
bars his resentencing. He contends that
state prosecutors violated his due process
rights when they knowingly proffered false
conviction records at his original
sentencing hearing and then deliberately
delayed confessing error until after the
1983 amendment was enacted.
disagree. Pursuant to 28 U.S.C. Sec.
2254(d), a federal habeas court is required
"to accord a presumption of correctness to
state court findings of fact." Sumner v.
Mata, 455 U.S. 591, 592, 102 S.Ct. 1303,
1304, 71 L.Ed.2d 480 (1982); Hunt v. Woodson,
800 F.2d 416, 419 (4th Cir.1986). In
particular, a state court finding that the
government acted in good faith where
defendant alleges he has been the victim of
intentional or purposeful government
misconduct, is entitled to a presumption of
correctness. Sanderson v. Rice, 777 F.2d
902, 909 (4th Cir.1985); Rose v. Duckworth,
769 F.2d 402,405 (7th Cir.1985). "This
deference requires that a federal habeas
court more than simply disagree with the
state court before rejecting its factual
determinations." Marshall v. Lonberger, 459
U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d
646 (1983). "[I]t must conclude that the
state court's findings lacked even 'fair
support' in the record." Id.
record supports the state court's findings,
upheld by the district court, that the
Commonwealth acted in good faith. See Evans,
323 S.E.2d at 119-121. At an evidentiary
hearing, conducted by the trial court in
response to petitioner's claims of
prosecutorial misconduct, the prosecuting
attorney testified he never intended to
deceive the trial judge, the jury, or the
defense concerning the true status of
petitioner's record. He also testified that
defense counsel had investigated
petitioner's prior record, had informed him
that they were familiar with petitioner's
record, and had been given pretrial access
to discovery materials which showed the
conviction records were questionable.
Moreover, during the sentencing proceeding,
the prosecutor advised defense counsel of
the discrepancies regarding the convictions
and testified that he assumed defense
counsel would explain the error to the jury
during closing argument. In his own argument
to the jury, the prosecutor alluded only to
those offenses for which petitioner had
actually been convicted.
the assistant attorney general who handled
petitioner's first appeal and the habeas
corpus proceeding testified that he did not
purposefully delay confessing error until
passage of the amendatory legislation. He
noted that he "wanted to be one hundred
percent sure" before confessing error in a
capital case, already affirmed on direct
appeal. Nothing in Sec. 2254(d) "gives
federal habeas courts ... license to
redetermine credibility of witnesses whose
demeanor has been observed by the state
trial court, but not by them." Marshall, 459
U.S. at 434, 103 S.Ct. at 850. Additionally,
the trial court, the Virginia Supreme Court,
and the federal district court conducted an
in camera review of the original files in
the governor's office and the attorney
general's office relating to the drafting,
introduction, consideration, and approval of
the new legislation and found nothing to
support petitioner's claim.
extent that the prosecutor was guilty of
unintentional errors of judgment in his
handling of the case, these errors were
remedied when petitioner received a new
sentencing proceeding free of false or
misleading evidence. A defendant must show "demonstrable
prejudice," that cannot be cured by a "traditional"
remedy, such as resentencing, to obtain the
"drastic" remedy that Evans seeks. United
States v. Morrison, 449 U.S. 361, 365 & n.
2, 101 S.Ct. 665, 668 & n. 2, 66 L.Ed.2d
564. Petitioner's argument that he was
demonstrably prejudiced by resentencing
because he was thereby deprived of an
automatic sentence of life imprisonment is
misplaced. Petitioner's conviction carried
the same possible penalty it did when he
contends that two errors occurred during his
resentencing: 1) he was denied his
constitutional right to confront and
cross-examine adverse witnesses because the
prosecution read into the record the 1981
trial transcript testimony of these
witnesses, and 2) he was denied his due
process rights because the trial judge
improperly instructed the jury that a
sentence of life imprisonment could be
imposed only by a unanimous verdict. We find
neither contention persuasive.
Petitioner's cross-examination claim must
fail because such a claim implies that the
trial court denied a request to confront and
cross-examine adverse witnesses. Petitioner
relies upon Tichnell v. State, 290 Md. 43,
427 A.2d 991, 993 (1981), which involved a
transcript used despite defendant's "vociferous
objection." Here the district court
expressly found that "[t]he record clearly
shows that Evans' counsel agreed to the use
of a transcript at resentencing." The trial
record amply supports this finding. Moreover,
Evans may well have benefited by agreeing to
have the trial transcript read to the jurors,
as opposed to live testimony.2
Petitioner's contention that the trial judge
improperly failed to instruct the jury that
under Virginia law a split decision by a
capital sentencing jury automatically
becomes life is also without merit. In
response to the jury's inquiry of whether a
life sentence must be unanimous, the trial
judge instructed the jury that its "verdict
must be unanimous as to either life
imprisonment or death." Such instructions
accurately state Virginia law, which
requires that the verdict in all criminal
prosecutions be unanimous. See Va.Rule
3A:17(a). No obligation exists for the trial
judge to inform the jury of the ultimate
result should they fail to reach a verdict.
See Barfield v. Harris, 540 F.Supp. 451, 472
(E.D.N.C.1982), aff'd, 719 F.2d 58 (4th
Cir.1983). In addition, the trial judge's
response to the jury's inquiry left no doubt
that a non-unanimous verdict would not
result in death.
probability" exists that the trial court's
instruction misled the resentencing jury as
to unanimity. Mills v. Maryland, 486 U.S.
367, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384
(1988). The jury was simply told that any
verdict must be reached unanimously. During
voir dire, moreover, each juror was informed
that even as a minority of one, he or she
could hold out if convinced that a life
sentence was appropriate. At closing,
defense counsel reminded the jury that their
sentence must be unanimous. Finally, when
polled individually, each juror affirmed the
verdict as his or her own.
raises two final claims: 1) that he was
denied his right to effective assistance of
counsel on direct appeal from his 1981
conviction because his counsel failed to
discover and inform the court that his death
sentence was based on false evidence, and 2)
that he was denied his right to effective
assistance of counsel during his 1981 trial
when his counsel failed to object to the
prosecution's assertion that he was a
We reject both claims.
Petitioner's argument of ineffective
assistance on direct appeal fails to meet
the criteria of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Under Strickland, petitioner must
show that counsel's performance fell outside
the "wide range of reasonable professional
assistance," id. at 689, 104 S.Ct. at 2065,
and "that the deficient performance
prejudiced the defense" to an extent "so
serious as to deprive the defendant of a
fair trial, a trial whose result is reliable."
Id. at 687, 104 S.Ct. at 2064. See also
United States v. Alexander, 789 F.2d 1046,
1051 (4th Cir.1986); Roach v. Martin, 757
F.2d 1463, 1476-77 (4th Cir.1985). This
standard applies to claims against both
trial and appellate counsel. Smith v.
Murray, 477 U.S. 527, 535-36, 106 S.Ct.
2661, 2666-67, 91 L.Ed.2d 434 (1986);
Griffin v. Aiken, 775 F.2d 1226, 1235-36
has failed to overcome the strong
presumption that counsel's performance was
reasonable. Prior to trial, counsel traveled
to North Carolina to investigate
petitioner's record of prior convictions and
found them in disarray. Accordingly, he
objected to some of the records when they
were introduced at trial. Following the
trial, counsel determined what he believed
to be petitioner's most viable arguments and
raised them on appeal. Doing so was sound
trial strategy. See Michel v. Louisiana, 350
U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.
83 (1955). The errors in the certified
conviction records introduced at trial could
only be shown by going outside the trial
record. Counsel, however, was under no duty
to go beyond the trial record because
nothing beyond that record would have been
cognizable on appeal. See Guthrie v.
Commonwealth, 212 Va. 602, 186 S.E.2d 68, 70
(1972). See also O'Dell v. Commonwealth, 234
Va. 672, 364 S.E.2d 491, 505 n. 8 (1988).
Additionally, petitioner cannot demonstrate
that he has been prejudiced by counsel's
alleged error. Vacating his original
sentence and affording him resentencing free
of error mooted any claims of prejudice.
Hyman v. Aiken, 777 F.2d 938, 941 (4th
Cir.1985), vacated on other grounds 478 U.S.
1016, 106 S.Ct. 3327, 92 L.Ed.2d 734 (1986).
Petitioner cannot show a "reasonable
probability" that the result of the
proceeding would have been different but for
his counsel's alleged errors. Strickland,
466 U.S. at 694, 104 S.Ct. at 2068.
petitioner's claim that his 1981 trial
counsel improperly failed to object to the
prosecution's assertion he was a multiple
murderer fails Strickland scrutiny. Pursuant
to Sec. 2254(d), see Hoots v. Allsbrook, 785
F.2d 1214, 1219 n. 6 (4th Cir.1986), we must
accept the state habeas court's express
factual finding that petitioner's counsel
chose not to object to the prosecutor's
argument for tactical reasons. See
Strickland, 466 U.S. at 689, 104 S.Ct. at
2065; Jeffers v. Leeke, 835 F.2d 522, 525
(4th Cir.1987). Defense counsel testified
that he chose not to object to the
prosecutor's argument because he felt an
objection would only have emphasized the
matter before the jury. As the district
court also noted, "[r]ather than draw
further attention to the evidence, defense
counsel instead chose to attack the
credibility of the relevant witnesses during
argument." This is a judgment trial
attorneys make routinely. It does not give
rise to a claim under Strickland.
these reasons, the judgment of the district
U.S. Supreme Court
498 U.S. 927
Wilbert Lee EVANS, petitioner
Raymond MUNCY, Warden, et al.
Supreme Court of the United States
October 17, 1990
The application for stay of execution of sentence
of death presented to THE CHIEF JUSTICE and by him referred to the
Court is denied. The petition for writ of certiorari to the United
States Court of Appeals for the Fourth Circuit is denied.
Justice MARSHALL, dissenting.
This Court's approval of the death penalty has
turned on the premise that given sufficient procedural safeguards
the death penalty may be administered fairly and reliably. E.g.,
Gregg v. Georgia, 428 U.S. 153 , 195-196, and n. 47, 2935-36, and n.
47 ( 1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.).
Wilbert Evans' plea to be spared from execution demonstrates the
fallacy of this assumption. Notwithstanding the panoply of
procedural protections afforded Evans by this Court's capital
jurisprudence, Evans today faces an imminent execution that even the
State of Virginia appears to concede is indefensible in light of the
undisputed facts proffered by Evans. Because an execution under
these circumstances highlights the inherently cruel and unusual
character of capital punishment, I dissent. [ Evans v. Muncy 498 U.S.
927 (1990) ][927-Continued.]
Evans was convicted of capital murder and
sentenced to death. At the sentencing phase, the jury's verdict was
predicated on a single aggravating circumstance: that if allowed to
live Evans would pose a serious threat of future danger to society.
See Va. Code 19.2-264.4(C) ( 1990). Without this finding, Evans
could not have been sentenced to death . See e.g., Furman v.
Georgia, 408 U.S. 238, 313 , 2764 (1972) (WHITE, J., concurring) (existence
of aggravating circumstance "distinguishing the few cases in which [the
death penalty] is imposed" from those in which it is not is a
constitutional prerequisite to death sentence); Gregg v. Georgia,
supra, at 188-189 ( same).1 While Evans was on death row at the
Mecklenberg Correctional Facility, an event occurred that casts
grave doubt on the jury's prediction of Evans' future dangerousness.
On May 31, 1984, six death row inmates at Mecklenberg attempted to
engineer an escape. Armed with makeshift knives, these inmates took
hostage 12 prison guards and 2 female nurses. The guards were
stripped of their clothes and weapons, bound, and blindfolded. The
nurses also were stripped of their clothes, and one was bound to an
According to uncontested affidavits presented by
guards taken hostage during the uprising, Evans took decisive steps
to calm the riot, saving the lives of several hostages, and
preventing the rape of one of the nurses. 2 For instance, Officer
Ricardo Holmes, who was bound by the escaping inmates and forced
into a closet with other hostages, states that he heard Evans
imploring to the escaping inmates, " 'Don't hurt anybody and
everything will be allright.' " Officer Holmes continues:
"It was very clear to me that [Evans] was
trying to keep [the escaping inmates] calm and prevent them from
getting out of control . . . . Based upon what I saw and heard,
it is my firm opinion that if any of the escaping inmates had
tried to harm us, Evans would have come to our aid. It is my
belief that had it not been for Evans, I might not be here today."
See Pet. for Cert., Exh. 14.
Other guards taken hostage during the uprising
verify Officer Holmes' judgment that Evans protected them and the
other hostages from danger. According to Officer Prince Thomas,
Evans interceded to prevent the rape of Nurse Ethyl Barksdale by one
of the escaping inmates. Id., Exh. 9. Officer Harold Crutchfield
affirms that Evans' appeals to the escapees not to harm anyone may
have meant the difference between life and death for the hostages. "It
is . . . my firm belief that if Evans had not been present during
the escape, things may have blown up and people may have been harmed."
Id., Exh. 8. According to Officer Crutchfield, after the escapees
had left the area in which they were holding the guards hostage,
Evans tried to force open the closet door and free the guards-
albeit unsuccessfully. Ibid. Officers Holmes, Thomas, and
Crutchfield, and five other prison officials all attest that Evans'
conduct during the May 31, 1984, uprising was consistent with his
exemplary behavior during his close to 10 years on death row. Id.,
Evans filed a writ of habeas corpus and
application for a stay of his execution before the United States
District Court for the Eastern District of Virginia. He urged that
the jury's prediction of his future dangerousness be reexamined in
light of his conduct during the Mecklenberg uprising. Evans
proffered that these events would prove that the jury's prediction
was unsound and thereby invalidate the sole aggravating circumstance
on which the jury based its death sentence. For this reason, Evans
argued that his death sentence must be vacated. The District Court
stayed the execution and ordered a hearing. Civ. No. 90-00559-R (ED
Va. Oct. 13, 1990). The Court of Appeals reversed and vacated the
stay. No. 90-4007 (CA4, Oct. 16, 1990) (per curiam).
Remarkably, the State of Virginia's opposition to
Evans' application to stay the execution barely contests either
Evans' depiction of the relevant events or Evans' conclusion that
these events reveal the clear error of the jury's prediction of
Evans' future dangerousness. 3 In other words, the State concedes
that the sole basis for Evans' death sentence-future dangerousness-in
fact does not exist.
The only ground asserted by the State for
permitting Evans' execution to go forward is its interest in
procedural finality. According to the State, permitting a death row
inmate to challenge a finding of future dangerousness by reference
to facts occurring after the sentence will unleash an endless stream
of litigation. Each instance of an inmate's post-sentencing
nonviolent conduct, the State argues, will form the basis of a new
attack upon a jury's finding of future dangerousness, and with each
new claim will come appeals and collateral attacks. By denying Evans'
application for a stay, this Court implicitly endorses the State's
conclusion that it is entitled to look the other way when late-arriving
evidence upsets its determination that a particular defendant can
lawfully be executed.
In my view, the Court's decision to let Wilbert
Evans be put to death is a compelling statement of the failure of
this Court's capital jurisprudence. This Court's approach since
Gregg v. Georgia has blithely assumed that strict procedures will
satisfy the dictates of the Eighth Amendment's ban on cruel and
unusual punishment. As Wilbert Evans' claim makes crystal clear,
even the most exacting procedures are fallible. Just as the jury
occasionally "gets it wrong" about whether a defendant charged with
murder is innocent or guilty, so, too, can the jury "get it wrong"
about whether a defendant convicted of murder is deserving of death,
notwithstanding the exacting procedures imposed by the Eighth
Amendment. The only difference between Wilbert Evans' case and that
of many other capital defendants is that the defect in Evans'
sentence has been made unmistakably clear for us even before his
execution is to be carried out.
The State's interest in "finality" is no answer
to this flaw in the capital sentencing system. It may indeed be the
case that a State cannot realistically accommodate postsentencing
evidence casting doubt on a jury's finding of future dangerousness;
but it hardly follows from this that it is Wilbert Evans who should
bear the burden of this procedural limitation. In other words, if it
is impossible to construct a system capable of accommodating all
evidence relevant to a man's entitlement to be spared death-no
matter when that evidence is disclosed-then it is the system, not
the life of the man sentenced to death, that should be dispatched.
The indifferent shrug of the shoulders with which
the Court answers the failure of its procedures in this case reveals
the utter bankruptcy of its notion that a system of capital
punishment can coexist with the Eighth Amendment. A death sentence
that is dead wrong is no less so simply because its deficiency is
not uncovered until the eleventh hour. A system of capital
punishment that would permit Wilbert Evans' execution
notwithstanding as-to-now unrefuted evidence showing that death is
an improper sentence is a system that cannot stand.
I would stay Wilbert Evans' execution.
[ Footnote 1 ] Evans initially was sentenced to
death in April 1981. At his first sentencing proceeding, the
prosecutor proved Evans' future dangerousness principally through
reliance upon seven purported out-of- state convictions, two of
which the prosecutor later admitted were false. Two years later,
after having relied on these bogus convictions in its successful
oppositions to both Evans' direct appeal to the Virginia Supreme
Court and his petition for a writ of certiorari to this Court, the
State confessed error. Evans' death sentence was vacated, and he was
granted a new sentencing hearing. See Evans v. Virginia, 471 U.S.
1025 , 1026-1027, 2037-2038 (1985) (MARSHALL, J., dissenting from
denial of certiorari). In March 1984, Evans once again was sentenced
to death. It is this second death sentence which he now seeks to
[ Footnote 2 ] The affiant prison officials all
attest that Evans played no role in instigating the riot.
[ Footnote 3 ] Equally remarkable is the sheer
gall of the manner in which the State makes its feeble challenge.
For six years, Evans' counsel has tried to pry loose from the State
copies of its investigative reports of the uprising. Counsel
steadfastly has contended that these reports would support Evans'
account of the relevant events and thereby strengthen Evans' claims
for both legal relief and executive clemency. The State has refused
to release its iron grip on these materials and to this moment has
not made them available to him. See Pet. for Cert., Exh. 6.
According to Evans' counsel, late last evening he
was contacted by counsel for Willie Lloyd Turner, another Virginia
death row inmate involved in the Mecklenberg uprising.
Notwithstanding its refusal to cooperate with Evans' request for the
investigative reports, the State, without protest, had provided
these reports to Turner's counsel. Upon learning of Evans' impending
execution, Turner's counsel immediately delivered these materials to
Evans' counsel, see id., Exh. 17 and Evans has now been able to make
them available to us, see id., Exh. 18.
Now that Evans finally has possession of
information the State has so deliberately denied him for six years,
the State cites two isolated excerpts from a lengthy set of
materials in a mean and deceitful attempt to belittle Evans' claims.
See App. to Brief in Opposition 1-2. A more honest and thorough
review of these materials, which include numerous interviews with
the hostages and reports of the State's investigators, reveals that
these materials in no way diminish Evans' account of the relevant