"Without truth, there can be no justice."
Governor Allen’s Commission on
Parole Abolition and Sentencing Reform
— August 24, 1994
Petition For Executive Clemency
On Behalf of Joseph Roger O’Dell
Robert S. Smith
Debo P. Adegbile
Paul H. Schoeman
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
The people of the Commonwealth of Virginia have entrusted their
government with the power to charge a man with murder, obtain his conviction,
sentence him to death, and carry out his execution. With this power comes a duty to
ensure that the highest standards of truth and justice govern every stage of the
proceedings. If Joseph O’Dell is executed on July 23, that duty will have been
violated and the result will be a miscarriage of justice.
The Governor, through his Counsel, has already indicated that he does
not consider Mr. O’Dell’s guilt an open question. In a letter dated July 15, 1997,
Mr. O’Dell’s counsel has urged the Governor to reconsider this conclusion.’ If the
Governor has any questions about the evidence against Mr. O’Dell or about Mr.
O’Dell’s continuing efforts to prove his innocence, counsel for Mr. O’Dell or Mr.
O’Dell himself would be grateful for the opportunity to answer them. Nonetheless,
this appeal for clemency will not address Mr. O’Dell’s innocence. Instead, it will
focus on the undisputed dishonesty and unfairness that infected Mr. O’Dell’s
sentencing hearing and resulted in his death sentence.
Governor Allen, more than anyone else in Virginia, has sought to rid
the Commonwealth of its dishonest sentencing practices. The “truth-in-sentencing"
reforms that Governor Allen championed ensure that no one will ever be sentenced to
death during this administration by a jury kept ignorant.-- as Mr. O’Dell’s jury was
kept ignorant -- of the truth about its sentencing choices. In the words of Governor
v The letter from the Governor’s Counsel and Mr. O’Dell’s counsel’s response
are annexed as Exhibit A.- In addition, a thorough discussion of the factual
errors contained in the Fourth Circuit Court of Appeals’. opinion will be
provided under separate cover.
Allen’s Truth-in-Sentencing Commission, "Without truth, there can be no Justice."
(Report of Governor Allen’s Commission on Parole Abolition and Sentencing Reform,
Aug. 24, 1994, at 25) By granting clemency to Joseph O’Dell, the Governor will
make sure that a man is not executed during this administration under a sentence of
death imposed by a jury that never knew the truth.
I. Governor Allen’s Answer to Crime --
Virginia’s Commitment to Truth-in-Sentencing
The jury system is an integral part of criminal justice in Virginia, but
that institution must be protected. As Governor Allen has emphasized, under
Virginia’s old system the greatest threat to the jury system’s integrity was the practice
of keeping juries ignorant of the truth about sentencing.
I want to make one point. We have jury sentencing in Virginia. It’s a
time-honored tradition. I’m firmly in support of it. Jurors should be
involved in it. You know, it’s one way -- it’s a question of whether
you trust people or not. The people, first of all, want honesty. The
system we now have is a dishonest system.
Larry King Live, Transcript, August 24, 1994. It simply cannot be the case that
Virginia itself -- in the era of Governor Allen’s initiatives for honesty and integrity in
government -- is free to circumvent its responsibility to be honest with jurors in a
death penalty case.
Championed by Governor Allen, the people of the Commonwealth of
Virginia have established truth-in-sentencing as the Commonwealth’s first principle of
crime control and public safety. In 1993, gubernatorial candidate Allen made truth-
in-sentencing the focal point of his campaign with a call for a new "honesty" and
"integrity" in the criminal justice system. Focusing on the rise in violent crime,
candidate Allen and then-Attorney General Gilmore declared that freedom from
violence and fear of crime is the most basic right of every citizen.
After the 1993 election, Governor Allen immediately established a
Commission on Parole Abolition and Sentencing Reform co-chaired by William P.
Barr, former U.S. Attorney General, and Richard Cullen, former U.S. Attorney for
the Eastern District of Virginia.” Beginning with the premise that three out of four
violent crimes in Virginia are committed by persons with prior criminal records, the
Governor charged the Commission with the task of developing a proposal to replace
parole with a system that deters crime by making punishment certain and predictable
-- replacing dishonesty and confusion with truth. Thus, Governor Allen’s criminal
justice reform was based on the principle that the people will be adequately protected
if violent criminals are kept behind bars. From the outset, Governor Allen challenged
the Commission to keep in mind the guiding principle "that the truth in sentencing
system we adopt must be worthy of the name." (Comm. Report at ii)
Governor Allen’s Commission embraced its mission, concluding that
"[i]n the absence of truth-in-sentencing, a full measure of justice is simply
unattainable." (Comm. Report at 29) The Commission explained that "without truth,
there can be no justice" because “the promise of a community judgment about proper
y Truth-in-sentencing reform in Virginia was a broad based initiative. The
Commission itself was composed of crime victims, law enforcement
professionals, judges and prosecutors, business and civic leaders, and
benefitted from the direct participation of Governor Allen, then-Attorney
General Gilmore, prominent members of the General Assembly in both
political parties, and the citizens of Virginia. The vote in favor of truth-in-
sentencing was 89-7 in the House and 34-4 in the Senate. Parole Abolition
Passes; Get On With It, Virginian-Pilot & Ledger Star, Oct. 5, 1994, at Al4.
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punishment is merely an illusion if those acting on behalf of the community do not
know what the sentence they impose actually will mean in terms of time served in
prison." (Comm. Report at 25; emphasis added)
In its August 23, 1994 report, Governor Allen’s Commission
characterized its plan as follows: "[oJnly truly fundamental reform, including the
abolition of parole and the adoption of a truth-in-sentencing system, will empower the
people of Virginia -- juries and judges -- to impose and enforce community judgments
about punishment tailored to fit the crime committed." (Comm. Report at i) Thus,
Governor Allen’s plan for "fundamental reform" in Virginia rests on two simple,
equally important and related precepts. First, that abolishing or dramatically limiting
parole is the surest way to protect the people of Virginia from the rise in crime in
general and violent crime in particular. Second, that the criminal justice system must
be reformed to replace the systemic "dishonesty" about the likelihood of parole with
truth-in-sentencing that provides juries and judges with true information about the
actual effect of their sentencing pronouncements.
We submit that the Commonwealth’s tactics in the sentencing hearing
of Joseph O’Dell were dishonest and flagrantly violated the two precepts on which
truth-in-sentencing, championed by Governor Allen, is founded. Respectfully, we
request that the Governor exercise his power of last resort and in so doing grant
Joseph O’Dell clemency, preserving the integrity of Virginia’s capital sentencing
system and ensuring that Virginia’s promise of truth-in-sentencing is "worthy of its
name."
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IL. Truth-in-Sentencing Is Based on Providing
Juries with the Truth About Parole Eligibility
Before Virginia’s new truth-in-sentencing system, criminals typically
served only a fraction of their sentences. Although juries and judges imposed
punishments which they deemed appropriate, their judgments were routinely
undermined by a system of early release rules. For example, the typical first-degree
murderer in Virginia was sentenced to approximately thirty-five years but served only
ten. (Comm. Report at 3) The system of so-called “good-time" credit provisions
allowed the average inmate 300 days off his sentence for every 365 days actually
served. Together these rules combined to create what was widely perceived by the
public as a system of revolving door justice, because sentences did not mean what
they said and "sentencing juries and judges [were] in the dark." (Comm. Report at
8) Accordingly, before this administration’s truth-in-sentencing reforms, Virginia
jurors -- such as those who sentenced Joseph O’Dell to die -- harbored deep and well-
founded suspicions about the ability of Virginia’s criminal justice system to keep
dangerous criminals off the streets.
The Governor’s Commission recognized that the climate of distrust and
“atmosphere of confusion" undermined the public’s confidence in the criminal justice
system. As the Commission’s report found:
[a]s the news media has focused on the rise of crime rates and the
inadequacy of the current system to cope with it, public awareness of
the softness of our punishment scheme has increased.
Lene (Comm. Report at 27)
This misleading system has a negative impact on all concerned. Early
release will prevent judges and juries from pronouncing a community
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judgment about the proper punishment for illegal conduct. The result
is unwarranted disparities in the length of incarceration and the loss of
public confidence in the administration of justice.
(Comm. Report at 3)
To address this threat to public safety and crisis in public confidence,
and to right the wrongs of the old revolving door justice system, Governor Allen
brought truth-in-sentencing to Virginia and abolished discretionary and mandatory
parole as of January 1, 1995. All offenses committed after that date are punishable
under the new system in which every inmate must serve at least 85% of his sentence.
The old "good-time" credit provisions were eliminated. (Comm. Report at 3) These
reforms were made based on the Commission’s ultimate conclusion that "[l]onger
incarceration of those who commit violent acts against their fellow citizens is the most
immediate and the most effective means of preventing crime." (Comm. Report at 7)
In the context of this case, the Governor should exercise his authority
to ensure that Virginia’s truth-in-sentencing system -- lauded as a national model --
does not fall short of its stated goal of bringing honesty to the sentencing process by
permitting prosecutors to deceive juries in order to obtain a death sentence.
All proponents of the death penalty assume the serious moral
responsibility of ensuring that the sanction is only applied in cases that are free from
the taint of unfairness. In 1996, Virginia executed more people than any other state
in America. Frank Green, Virginia Deaths Set Record This Year, Richmond Times-
-Dispatch,.Dec. 18, 1996, at A18. Accordingly, Virginia has a responsibility to be
especially vigilant in preserving truth and fairness in death cases. A community
judgment that capital punishment is available in certain situations does not grant
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license to obtain a death sentence through unfair and deceptive means. If even one
person is executed after a proceeding tainted by unfairness, the legitimacy of the
death penalty and the criminal justice system itself is undermined.
I. At Joseph O’Dell’s Sentencing Hearing,
the Jury Never Knew the Truth -
Although Joseph O’Dell’s death sentence has been debated ardently in
the courts, "it is undisputed that the conduct of the sentencing hearing that led to the
imposition of his death penalty violated the Due Process Clause of the Fourteenth
Amendment." O’Dell v. Netherland, 1997 U.S. Lexis 3862, at *31 (Jun. 19, 1997)
(Stevens, J., joined by Souter, Ginsburg and Breyer, JJ., dissenting). This was not a
mere "technical" violation. On the contrary, what happened in O’Dell’s case was the
worst kind of “untruth-in-sentencing," which undercut both the basic fairness of the
proceedings and the reliability of the jury’s verdict.
At Mr. O’Dell’s sentencing hearing, the prosecution’s strategy was to
exploit and encourage the jury’s misunderstanding of Virginia law. Knowing that
jurors were unlikely to be aware of the sentencing law that would have made a life
sentence for Joseph O’Dell mean life without possibility of parole, the prosecution
seized on the widespread assumptions about revolving door justice and frightened the
jury with the threat that, unless executed, Mr. O’Dell would someday be let loose in
the streets and neighborhoods of Virginia. Using images that asi the most visceral
reactions, the prosecution described Mr. O”Dell as a "night stalker because he is
comfortable at night when under the cloak of darkness and in weather conditions that
are fitting to him, he can take advantage of opportunity and prey on defenseless
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women." Subsequent interviews with the jurors revealed that this tactic worked to
perfection. During the sentencing deliberations the jurors’ principal concern was the
possibility that Mr. O’Dell would be paroled, perhaps in as little as seven years.
(Affidavit of John P. Coffey, annexed as Exhibit B.)
The prosecution’s empty threat would have been exposed -- and the
prosecution’s credibility would have disintegrated -- had the jury been told the truth
about Mr. O’Dell’s parole ineligibility. Unfortunately, each time that Mr. O’Dell
tried to tell the jury the truth about its sentencing alternatives, the prosecution
objected and the trial judge sustained the objection. At the sentencing hearing which
was held in 1986, and ever since, Joseph O’Dell and his attorneys have protested the
unfairness of this one-sided gag rule that prevented the jury from learning the truth
about the options before it. Joseph O’Dell’s complaints about the unfairness of the
prosecution’s tactics were not empty posturing. Today, the rule apainst this type of
prosecutorial manipulation and deception is a fundamental tenet of due process of law
under the Constitution of the United States and under Virginia’s truth-in-sentencing
laws.
The fundamental due process principle raised by Joseph O’Dell was
embraced by the United States Court in Simmons v. South Carolina, 512 U.S. 154
(1994). In 1994, before Mr. O’Dell’s case finally reached the Court, the Court heard
an appeal from another condemned inmate, Jonathan Dale Simmons. Mr. Simmons,
who was convicted of capital murder in South Carolina, was sentenced to death after
a hearing that was indistinguishable from Mr. O’Dell’s hearing. In Simmons, the
Supreme Court ruled, 7-2, that the gag rule violated principles of "elemental due
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process." 512 U.S. 154, 175. At the heart of the Court’s decision in Simmons was
the simple idea that a jury charged with deciding whether a person will be sentenced
to life or death should know the meaning of a life sentence. When “life” means life
without possibility of parole, a jury must understand that fact in order to determine
whether a life sentence is the appropriate punishment. Where a death sentence is
meted out by a jury kept ignorant of the true fact, the sentence "should be vacated as
having been arbitrarily or discriminatorily and wantonly and freakishly imposed."
512 U.S. at 172-73 (Souter, J., joined by Stevens, J., concurring) (internal quotation
marks omitted). Even the two dissenting Justices agreed that this idea “is
undoubtedly reasonable as a matter of public policy." Simmons, 512 U.S. at 185
(Scalia, J., joined by Thomas J., dissenting).
Three months later, a federal district court judge presiding over
Mr. O’Dell’s petition for a writ of habeas corpus ruled that Mr. O’Dell-was entitled
to what Simmons received: a new sentencing hearing. To reach this result, the judge
determined that the "wrong" visited upon Mr. O’Dell by his prosecutor was the same
as the "wrong" committed against Simmons and that the "remedy" should be the same
for both men. Since that opinion was rendered, no court has disputed that the
constitutional violation was the same. Nonetheless, by a 7-6 vote, the Court of
Appeals for the Fourth Circuit reversed the district court and held that federal courts
do not have the power to grant Mr. O’Dell the remedy that he seeks. In what has
been called "one of the most unjust rulings of the term," a 5-4 majority of United
States Supreme Court agreed. Death Outside the Constitution, N.Y. Times, July 1,
1997, at A20.
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The only reason why the Supreme Court did not remedy the denial of
due process for Mr. O’Dell is the date of Mr. O’Dell’s sentencing hearing. The
question the Commonwealth now faces is whether, "despite the admittedly unfair
hearing, [O’Dell] should be put to death because his.trial was conducted before .
Simmons was decided." 1997 U.S. Lexis 3862, at *33. Had O’Dell been sentenced
to death after 1994, the Supreme Court -- indeed, any court -- would have applied
Simmons to invalidate O’Dell’s sentence and require a new and fair sentencing hearing
free from the taint of the grave misimpression the prosecution communicated to the
sentencing jury. Instead, a bare majority of the Supreme Court upheld the ruling of a
bare majority of the Fourth Circuit that the limitations on the federal habeas corpus
procedure rendered the federal courts powerless to remedy the manifest injustice.
As a consequence of the Supreme Court’s deference to the sovereignty
of the States, the power to provide a fair sentencing proceeding to ise O’Dell belongs
only to the Governor. Unlike the Justices of the United States Supreme Court or the
judges in the lower courts, the Governor is not encumbered by technical rules of
retroactivity and has the unrestricted power to invalidate an “admittedly unfair" death
sentence that was obtained in the courts of the Commonwealth without due process of
law.
This is a case where the Governor should exercise his power, not
merely because the Commonwealth’s tactics resulted in a denial of due process, but
because the prosecution deceived the jury and rendered its death verdict unreliable.
At Mr. O’Dell’s sentencing hearing the prosecution did more than simply object to
Joseph O’Dell’s attempts to inform the jury of his parole ineligibility. The
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ll
prosecution affirmatively sought to arouse the jurors’ fears about the revolving door
justice system by highlighting each of Mr. O’Dell’s prior releases on parole, making
repeated references to the fact that Mr. O’Dell was on parole at the time of Helen
Schartner’s death, and giving the jury the false impression that, unless Mr. O’Dell
was sentenced to death, he might be paroled to commit new crimes. When
Mr. O’Dell took the stand, the prosecution used or elicited the words “parole” and
"release" seventeen times. Then, in closing, the prosecution hammered home its
theme:
Isn’t it interesting that he is only able to be outside of the prison system
for a matter of months to a year and a half before something has
happened again?
Ladies and gentlemen, I do not ask you to do an easy thing; but I state
to you that this man, Joseph Roger O’Dell, has forfeited all right to life
within this society as any kind of free human being.
[Y]ou may still sentence him to life in prison, but I ask you ladies and
gentlemen in a system, in a society that believes in its criminal justice
system and its government, what does this mean?
I put it to you ladies and gentlemen. What is right in this case is that
this man has forfeited his right to live among us because all the times
he has committed crimes before and been before other juries and
judges, no sentence ever meted out to this man has stopped him.
Nothing has stopped him, and nothing ever will except the punishment
that I now ask you to impose.
Contrary to the arguments of the prosecution, however, if Mr. O’Dell
had been sentenced to life imprisonment rather than death, he would never have been
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12
"outside of the prison system." Even if his life were spared, Mr. O’Dell would still
have lost forever his “right to live among us" as "any kind of free human being." As
the prosecution well knew, Virginia law makes it absolutely clear that "life in prison"
means that Mr. O’Dell would spend every moment of every day behind bars for the
rest of his life. Va. Code Ann. § 53.1-151(B1). Indeed, everyone in the courtroom
except the jurors knew the truth.
IV. Truth-in-Sentencing Makes a Difference
In a powerful editorial on Joe O’Dell’s case the USA Today observed
that "[g]uilt aside, O’Dell’s jurors should have been told that a life sentence would be
close ended.... Why? Because knowing that a sentence will be served in full makes a
difference ... jurors ought to know what their options are, and they ought to be
confident that a life sentence means exactly that. Otherwise, neither they nor the rest
of us can ever rest totally at ease." Juries Need All The Facts, U.S.A. Today, March
24, 1997.
As a result of the Governor’s truth-in-sentencing reforms, Virginia law
now requires trial judges to tell jurors the truth about a defendant’s parole
ineligibility. The results in death penalty cases tried after the law took effect on
January 1, 1995, provide powerful evidence of how juries in Virginia respond when
told the truth. As reported in the Richmond Times-Dispatch on November 24, 1996,
“in the past two years, only one jury and one judge have issued a death sentence for a
capital murder committed on or after January 1, 1995." During the first fifteen
months of the truth-in-sentencing reforms, “all six people convicted of capital murder
by juries and sentenced under the new law were given life without parole. Since
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then, officials and others involved in capital cases know of only two death sentences."
Frank Green, Death Sentences Decline in Va., Richmond Times-Dispatch, Nov. 24,
1996, at Al.
This administration’s reforms ensure that jurors will not be misled into
imposing the harshest possible sentence in a misguided effort to adjust for the
unpredictable effects of parole. The results from capital cases tried with the benefit
of truth-in-sentencing furnish a persuasive indication that a jury given the truth about
Mr. O’Dell’s parole ineligibility would not have sentenced him to death.
Vv. The Governor Should Continue To
Insist On Truth-In-Sentencin:
Joe O’Dell’s death sentence is the product of an “admittedly unfair"
and misleading sentencing proceeding. As a result, the jury that sentenced him to
death did so under the impression that death was the only choice that would keep
Mr. O'Dell off their streets and away from their families. This assumption, which
the prosecution cultivated, was absolutely false and the falsity was of grave
significance. The distinction between a capital sentencing jury advised of a
defendant’s parole ineligibility and one that has been misled on this point is a
distinction with a crucial difference. The effectiveness of protecting the public by
incarcerating violent criminals without parole -- which is the first principle of
Virginia’s truth-in-sentencing law -- was firmly established long before that
enactment. Thus, it was every bit as unfair for the prosecution to deprive
Joseph O’Dell in 1985, as it would be today, of what the Supreme Court has
newenes.o74e1 9 90 107
14
enactment. Thus, it was every bit as unfair for the prosecution to deprive
Joseph O’Dell in 1985, as it would be today, of what the Supreme Court has
characterized as the best argument available to rebut the claim of future
dangerousness. It would be unconscionable to carry out a death sentence that has
been elicited in this manner.
In future cases, Virginia law and the U.S. Constitution will ensure that
this manifest unfairness never recurs. However, at this time, the only person with the
power to correct the injustice that the Commonwealth visited upon O’Dell is the
Governor. We respectfully request that Governor Allen exercise his power to
commute Joseph O’Dell’s sentence in order to save his life, preserve the integrity of
the Commonwealth’s capital sentencing system, and ensure that the truth-in-sentencing
system is really "worthy of its name." (Comm. Report at ii)
Respectfully submitted,
Joseph Roger O’Dell, III
By Counsel:
| LAeng
Robert S. Smith
Debo P. Adegbile
Paul H. Schoeman.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
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