HERBERT R. BASSETTE
A COMPELLING CASE
FOR CLEMENCY
TABLE OF CONTENTS
WISTS OF EXHIBITS « coe a cease 6 60 0 5 6 0 » seesaensensmernay ninconannnesieserenemmemensntie
LIST OF APPENDICES ........ 06 0c cece cee eee tees
I. A COMPELLING CASE FOR CLEMENCY ........ 00.0002 e eee eee
Il. THE HISTORY .. 0.06. ee eee
Ill. |. A DEATH PENALTY BASED ON A FALSE CONVICTION CANNOT
STAND) ss gg ne ese scer perv n sameness agin eae eee ha es daa
IV. THE SUBSTANTIAL EVIDENCE AGAINST JACKSON AND THE FLIMSY
EVIDENCE AGAINST HERBERT DESTROY THE CERTAINTY OF
HERBERE'S'GUILT o 2 ¢ eee ce 4 wheres 44 REE REESE ER ERR HBAS
A. The Substantial Evidence That Tyrone Jackson Killed Burwell ........
B. The Dearth Of Reliable Evidence Against Herbert ................
1. There Is No Physical Evidence To Implicate Herbert see
2. There Are No Non-Accomplice Eyewitnesses Against Herbert
Nor Any Witnesses to Corroborate The Accomplices' Stories ... .
Cc. The Case Against Herbert Depends Entirely On The Testimony Of The
Accomplice ACCUSETS: .::cwserenmene em eee ee ee nme nace esas bvacde
1. The Character Of Herbert's Accusers tee
a. Betty Jean Winfield ss czcccveeuyesegegeeseesrs
b. Samuel "Dap" Cook .. 2.2... ee eee
c. Jeanette Thienia Green ..... 0.0... ..0.0..0.-000.
Bi The Story Told By Winfield, Cook, And Green Does Not Hold
Up Under Scrutiny .. 0.2... . 0... cee eee eee eee
a. Inconsistencies, Contradictions, and Lies .......:....
3. Winfield, Cook, And Green Had A Motive For The Crime And
The Opportunity To Collaborate On Their Story, And Winfield
And Jackson Had Tried To Frame Herbert Before ...........
Dz. Other Evidence Suggests That Herbert Was Not Involved In The Crime . .
Ik Herbert's Lack Of Motive ..... 2.0... .-.0 0000 eee eeeee
2. Credible Witnesses Testified Herbert Could Not Have Killed
Burwell sce wae ga gee ee sy ed ee eee ge Keene eH ees
3. Winfield's Arrest
E. Conclusion . 2... ee eee
Vv. A CONVICTION BASED SOLELY ON ACCOMPLICE TESTIMONY
VI.
HISTORICALLY HAS NOT LED TO THE DEATH SENTENCE AND
SHOULD NOT IN HERBERT'S CASE ....... 0.000 ee cee eee ee eee
CONCLUSION 2 sg5 55855 REESE EER She Rae EEL SRR EEE Redan nae
ii
LISTS OF EXHIBITS
Jury Verdict of Commonwealth v. Bassette,
WAU Uste22) 19800 anes ao a 2 wos snared oveediBensncmeerennee Exhibit 1
Judge Wallace Excerpt from Sentencing Hearing
Herbert Bassette, November 17-20, 1980 ......... Exhibit 2
Affidavit of Judge Robert M. Wallace ........... Exhibit 3
Affidavit of Willie Bassette .................. Exhibit 4
Affidavit of Benny Ruffin ................-.. Exhibit 5
Letter from Herbert Bassette, December 15, 1991 .... Exhibit 6
Affidavit of Tifmey Ward .................0.. Exhibit 7
Transcript of Conversation with Gunman ......... Exhibit 8
Article from Petersburg Progress Index,
August 30,1966 ...... 2.0.0.0... eee eee ee Exhibit 9
Letter from Attorney General's Office to
Judge W. R. Wright, Jr., April 12,1983... 0.00... Exhibit 10
Affidavit of Robinetta L. Wall ............0... Exhibit 11
Police Statement of Robinetta L. Wall,
November 28, 1979 ............ 0.000.000 0e Exhibit 12
iti
13.
14.
15.
16.
17.
18.
19.
20.
21:
22.
23.
Affidavit A of Alfred Brown ...............-- Exhibit 13
Excerpt from FBI Interview of Belinda Atkinson .... Exhibit 14
FBI Interview of Betty Winfield ............... Exhibit 15
Excerpt from Tyrone Jackson Testimony at
April 28, 1980 Trial, U.S. v. William E. Russell
& George W. Ford ... 1... ee Exhibit 16
FBI Interview of Karen Jackson ............... Exhibit 17
Letter from Betty Winfield to Billy Ferby,
Joly 15,1980 ssassseeeeeeessuesevquegene Exhibit 18
Affidavit B of Alfred Brown... 2.2 eee Exhibit 19
Excerpt from Detective Daniel O'Keefe Testimony
at July 29, 1980 Trial, Commonwealth v. Green ..... Exhibit 20
Excerpt from Betty Winfield Testimony at
April 28, 1980 Trial, U.S. v. William E. Russell
CeGeorge WFO 6 aaa e 6 0 0 08 8 werememrerecnanerees Exhibit 21
Excerpt from Demetress Bassette Testimony at
April 28, 1980 Trial, U.S. v. William E. Russell
BeGeorge. Wi FO! oo xo & sorter smseasasesevaonmnceowcnesicas Exhibit 22
Excerpt from Robert F. House Testimony at
April 28, 1980 Trial, U.S. v. William E. Russell
EeGeorge Wi Ford, 20 oo cme yee & Exhibit 23
24.
25.
26.
27.
28.
29.
30.
31.
32:
33.
34.
Excerpt from Presentence Report of
Betty Winfield: wcccost cca cn eee e ee eee wuaes Exhibit 24
Letter from Betty Winfield to
Judge L. A. Rosenstock, January 9,1974 ......... Exhibit 25
Letter from Jeanette Green to Judge Appollo [sic],
May 1976 2... eee Exhibit 26
Letter from Betty Winfield to Mr. Sheppard,
August 1, 1978 2... 6. cee eee Exhibit 27
Police Statement of Betty Winfield,
January $,1980. woes kein os cameras oe em Exhibit 28
Police Statement of Samuel Cook, March 7, 1980 Exhibit 29
Police Statement of Jeannette Green, March 7, 1980 .. Exhibit 30
Letters from Betty Winfield to Jeannette Green ..... Exhibit 31
Letter from Betty Winfield to Samuel Cook ........ Exhibit 32
Testimony of Michael Wade at Plenary Hearing,
August 30-31, 1983 ...... eee eee eee Exhibit 33
Communication from the Governor of Virginia
Transmitting a List of Pardons, Commutations,
Respites and Remission of Fines and Reasons
Therefor, March 4, 1912 ...............0000. Exhibit 34
LIST OF APPENDICES
Summary of the Evidence in Post-Furman
Death Cases in Virginia .... 2.0.02. - eee eee eee eee Appendix A
Trial Transcript of Commonwealth v. Bassette,
(Trial II) August 19-22, 1980 2... .. 0. eee eee eee Appendix B
Trial Transcript of Preliminary Hearing,
Febriary 15, 1980' sey aan oh eee ns soem eue Appendix C
Trial Transcript of Commonwealth v. Bassette,
(Trial D Tine 17-20,1980 ee ee 2 5 8 wesepemreny eas aw Appendix D
vi
PETITION FOR CLEMENCY BY HERBERT R. BASSETTE
To: The Honorable L. Douglas Wilder, Governor of Virginia
L A COMPELLING CASE FOR CLEMENCY
A government's system of criminal justice succeeds only to the extent it eliminates
doubt as to the propriety of conviction and condemnation. If doubts surface that the
government has convicted the innocent or punished the undeserving, the government fails --
a system of criminal justice is transformed in that particular case into a criminal system of
justice. Virginia's system erects numerous safeguards against such a failure, and sometimes
we succumb to the comforting illusion that these safeguards are failsafe. They are not, and
indeed they cannot be, entrusted to human beings as they are. So we come to the final
defender against doubt, the final safeguard: executive clemency.
Doubts indeed have surfaced about the propriety of Herbert Bassette's conviction and
sentence. Those doubts fall into three categories. The first category of doubt concerns the
sentencing phase of the trial in which Herbert was given the death penalty. Herbert's death
sentence was based on his 1966 conviction for shooting Holiday Inn clerk James Wallace in
the course of a robbery. Compelling evidence now shows that Herbert was innocent of that
1966 crime. Thus, his death sentence was based on false evidence, and the judgment of the
jury that condemned him is bankrupted. For the Commonwealth to proceed with Herbert's
execution in light of these facts requires that the Commonwealth substitute its judgment for the
__Row-tainted judgment of the Burwell jury.
Second, the case against Herbert, flimsy from the outset, has weakened with each
passing year. Time has brought to light significant new evidence that a man named Tyrone
Jackson committed the murder of Albert Burwell, Jr. and confessed credibly soon after it
occurred. This new evidence also establishes that the three accomplices to the murder
deliberately withheld from the jury evidence that Jackson was with them on the night of the
crime, deceitfully striving to improve the poor case against Herbert. The case needed
improving: no physical evidence or independent witnesses linked Herbert to the crime, forcing
the prosecution to rely entirely on the testimony of these three accomplices. Drug addicts and
career criminals, these accomplice accusers emerged from the worst segments of society to
point the finger at Herbert. Facing the chair themselves, the accomplices had strong incentive
to blame Herbert, yet they never could agree on what happened that night. Nor does the story
they tell today resemble the many different stories they told back then. Herbert and his
family, in contrast, have remained steadfast in his claim of innocence and constant in their
story of that night's events.
Finally, there is doubt that the kind of evidence of guilt mounted against Herbert ever
could support the death penalty. All the evidence against Herbert came from his accomplices,
a trio of drug-using felons with much to gain and nothing to lose by pointing the finger at
Herbert. In the 72 capital cases in Virginia since Furman v. Georgia, 408 U.S. 239 (1970),
the Commonwealth has not sentenced to death any man solely on the basis of accomplice
testimony except Herbert. (See Appendix A). In every other case, the Commonwealth has
relied on a confession, non-accomplice eyewitness testimony, or physical evidence to provide
the certainty essential for the imposition of death, but no such evidence has ever been found to
2
bolster the shaky testimony of Herbert's drug-addled accusers. Indeed, we know of no case in
this century in which the Commonwealth has executed a man based only on testimony from
witnesses such as these.
Because of these doubts, Herbert R. Bassette petitions the Governor to commute his
death sentence. Based on the substantial evidence of his innocence, both that available at his
trial and that recently uncovered, Herbert is requesting a new trial in court. In this petition,
Herbert asks only that his life be spared and that his sentence be commuted to life in prison.
I. THEHISTORY
Late in the evening of November 23, 1979, Albert Lee Burwell, Jr., was shot and
killed. He died within minutes. His body was found the next morning by a passerby. In
December 1979, the police arrested Tyrone Jackson and charged him with the capital murder
of Burwell based on his confession of guilt to Robinetta Wall and his possession and sale of
the murder weapon on ‘the day after the murder.
After he was arrested, Jackson implicated Betty Winfield, who was arrested and
charged. She in turn accused Samuel Walker "Dap" Cook and Jeanette Green as accomplices
in the murder. Each was charged with capital murder. Together, Winfield, Cook, and Green
conspired to implicate Herbert, claiming he was the triggerman. The case against Jackson was
dismissed, and the Commonwealth proceeded against Herbert alone. Herbert always has
maintained his innocence, claiming that he was with his family in Richmond at the time of the
crime. Members of Herbert's family testified in support of his claim at both of his trials.
Herbert was tried for the murder on June 17-20, 1980. Robinetta Wall did not appear
to recount Jackson's confession, so Herbert's defense was forced to proceed without her. The
3
trial stalled at the guilt phase and the court declared a mistrial when the jurors could not agree
that Herbert was guilty of the charges against him. Herbert nevertheless was tried again by
tie Commonwealth on August 19-22, 1980. Despite the lack of credible testimony, the dearth
of any independent evidence linking him to the crime, the absence of a motive, and his
protestations of innocence, he was convicted and sentenced to death.
Il. ADEATH PENALTY BASED ON A FALSE CONVICTION CANNOT STAND
Immediately following its verdict of guilt, the jury was reconvened to pass sentence on
Herbert Bassette -- life or death. The Court instructed the jury that:
Before the penalty of death can be imposed as punishment in this
case, the Commonwealth must prove beyond a reasonable doubt
either one of the following two alternatives: One, That, after
consideration of his past criminal record, there is a probability
that he would committ [sic] criminal acts of violence that would
constitute a continuing serious threat to society; or Two, That his
conduct in committing the offense was outrageously or wantonly
vile, horrible or inhumane in that it involved torture, depravity of
mind or aggravated battery beyond that necessary to accomplish
the act of murder.
Trial II at 624-25. (See Appendix B). In addition to future dangerousness, the
Commonwealth's Attorney argued that the crime also should be considered "vile or depraved."
Trial I at 597. The jury decided differently:
We, the jury, on the issue joined, having found the defendant
guilty of the wilful, deliberate and premeditated killing of Albert
Burwell, Jr., in the commission of robbery while armed with a
deadly weapon, and having found that, after careful
consideration of his past criminal record that there is a
Probability that he would commit criminal acts of violence that
would constitute a continuing serious threat to society . . .
unanimously fix his punishment at death.
Exh. 1 (Jury Verdict)(emphasis added). The jury affirmatively rejected "vileness or
depravity" as a basis for its sentencing judgment. Id. Thus, Herbert was sentenced to death
solely because the jury and judge concluded he was a future danger to society.
Only one conviction provided the basis for the jury's conclusion of future
dangerousness, and that was Herbert's 1966 conviction for shooting James Wallace. Details
about the 1966 crime were provided by Commonwealth's Attorney Albert Nance, who read
from the 1966 trial transcript:
Then I turned to the left to get down on the floor as he directed
me and when I turned to the left my knee, left knee gave way a
little bit and in order to catch my balance I throwed up my arms -
my arms up and just as I throwed my arms up he fired the
revolver.
Trial II at 580. One juror, David L. Maiden, recently stated during an interview with the
Richmond Times-Dispatch that; "“ You knew you had done the right thing’ [after hearing about
the Petersburg robbery]." Richmond Times-Dispatch, December 15, 1991. Judge Wallace,
accepting the jury's recommendation of death, stated that "One of the things that the Court
must think about in whether to choose between life or death is the probability that it might
occur again." Exh. 2 (Wallace excerpt from Sentencing Hearing). Noting that "the jury also
considered this question," Id. Judge Wallace agreed that "the probability of this happening
again would appear . . . to be very great." Id. He remarked that "the Court is mindful of the
transcript from the Petersburg Circuit Court of a previous robbery. And the Court, noted...
in the sentencing stage, noticed at the time the similarity of the actions of the defendant in that
case compared to this case." Id.” Both jury and judge then, relying exclusively on his 1966
conviction for shooting James Wallace, concluded Herbert would pose a future danger to
society. Exh. 3 (Affidavit of Robert M. Wallace).
Herbert did not shoot James Wallace. Herbert has denied his guilt of that Petersburg
crime for 26 years, and evidence now exists to prove that he is innocent. Two men, close
friends of the four participants in the 1966 crime, have come forward to confirm Herbert's
innocence. Exh. 4 (Affidavit of Willie Bassette); Exh. 5 (Affidavit of Benny Ruffin). These
men, Willie Bassette and Benny Ruffin, also have provided Herbert's attorneys with the
identity of the actual culprit. Though not involved in the crime, Willie Bassette and Ruffin
knew about the crime, and on more than one occasion, discussed the crime with its
participants. In those conversations, the true perpetrator confessed that he, not Herbert
Bassette, robbed the Holiday Inn and that he, not Herbert Bassette, was the gunman. He also
offered at the time to clear Herbert's name by confessing to the crime.
Recently, Willie Bassette located the admitted gunman and gave him a letter from
Herbert in which Herbert asked the gunman to come forward. Exh. 6 (Herbert's letter of
December 15, 1991). When Willie asked the gunman if he were willing to make good on his
old offer and admit his role in the crime, the gunman again admitted his guilt, but expressed
Oddly, the only similarity noted by the Court makes little sense:
In the Petersburg case . . . that person was told to do certain things before that
person was shot . . . . Before Albert Burwell was shot six times he begged for
mercy, and was shot, and he was begging and he was still shot again.
Exh. 2.
7 reluctance to come forward.” He did agree to speak with Herbert's attorneys about coming
forward so that Herbert's life could be spared. In that conversation, a transcript of which has
been attached as Exhibit 8 (transcript of conversation with gunman), the gunman confirmed
that Herbert was wrongfully convicted. Just as importantly, during the conversation, the
gunman never denied committing the shooting. Taken as a whole, that conversation compels
the conclusion that he, not Herbert, shot Wallace, as these excerpts show:
Schwarzschild: Because when they were deciding -- what we're trying to stop is
his death...
Gunman: Right, I understand. I'm all for saving anybody's life, but I can't
see putting my life on the line for something that happened, you
know, 26 years ago. Now I'm 45 years old, I've got a family,
I'm working on the same job 15 years, I'm getting promoted to
different things, but I just can't see, you know, me coming in and
stating that, I mean, implicating myself in a crime. You know, I
mean it's bad for me to say this when I know maybe I could help.
And then I'm not saying then again, maybe if I did it, it still
wouldn't help. You understand what I'm saying?
Schwarzschild: Ido.
RRR
Gunman: I'm not -- see, but this is what I'm saying. There's not no
guarantee that you can save him even if we had you proof of that
-- now be honest. There's not no sure fire guarantee, now be
honest. Then if I step forward or Dukie stepped forward, all of
us would be implicating ourselves. Then if they still put him to
death, we did it for nothing. Do you understand what I'm
Saying. I could see it if we had a sure fire cure, it's fine, but to
Just step up with, you know, then the man can still put it up, that
was a waste. It's not a sure -- I could see it if you could give me
a sure fire that this would work (slapping hand on table).
i » Among the persons who heard this confession was Tifney Ward. Her affidavit describes the essence of this
_ conversation. Exh. 7 (Affidavit of Tifney Ward). Ward is no relation to Herbert.
7
Schwarzschild:
Gunman:
Schwarzschild:
Gunman:
Schwarzschild:
Gunman:
Schwarzschild:
Gunman:
Schwarzschild:
Gunman:
If we can do that, would you think about it?
What I been telling you, you got to prove it to me, I mean, not
just tell me that it will work, you know, because what I'm saying
i8iy = =
I'm not saying that -- no, no, I'm not going to tell you. But if we
could...
Because I can't see where all this will have a bearing on what's
happening now, (slapping hand on table) you understand what
I'm saying.
Okay, but if we go to the Attorney General or the Governor and
we suggest to them that we might be able to show this "x" and
they agree that if we can show that somebody else pulled the
trigger in the Holiday Inn, then they would commute his
sentence, then would you?
Yeah, then if they commuted -- this is what I'm saying.
No, I'm saying if I got that.
Yeah, if you got this in writing or something I can see, but what
I'm saying is even if they put me in the cell, then they're going
to ask you, say well you got an affidavit from somebody else,
most likely all I have to be is present to give an affidavit to him,
the Attorney General or whoever, stating what I know about the
crime.
That's right.
ORK
But see like I'm saying, it's 25, I guess it's around to what
around 26 years now and like I said I'm gonna have to talk to her
and think about it. I know J don't have much time to think about
it, but I've got to think about this matter a whole lot. I got to
just go on and discuss it, you know, with my old lady, my mom,
my nephew. Cause I can't just, you know, I'm. . . you know, I
don't want to see the man die and I'm being honest with you, I
do not want to see that. But to me I can't see like you all keep
saying that testimony from what happened in ~66 is what the jury
8
Schwarzschild:
Gunman:
Gunman:
and them believed, that he shot this man, and if J was to come
forward and say that I shot the man, it would save him and give
him clemency. But it still ain't getting him out of jail.
But it would save his life.
Yeah, I know it would save his life, but this is what I'm saying,
then I'm in jail.
ORK
You know, I can't just you know . . . see it ain't only me that I
don't, that I'm worried about, I have kids and stuff. You know it
ain't only me. You know that I'm sure enough worried about the
law, but if this had of happened, shit, 20 years ago, I'd have
been all for going, you know, cause I was still doing wrong and
then I was in jail myself. But now, it's just a hard pill to
swallow, you understand what I'm saying, don't you? And I'm
not going to sit here and tell you that I can do it, but I might get
there at the last minute and get cold feet even if I tell you I did it
cause it's, you know, it's working on my mind all day. You
know, it's been working on my mind all day and I don't know
why, J just felt when I saw that big article in the Sunday paper
that I was going to hear something about this, you know. It just
was, it's just something that clicked in my mind, you know.
Cause I ain't never knew that the man was only . . . was that had
death until about -- not this week, I think I saw another article
where he was supposed to die or something for killing somebody,
and I kept saying, Herbert, you know, just then it clicked on and
I said I know he was in prison, but I knew he got out because
people had told me they saw him on the street. But he wasn't out
that long he got locked up again, you know. But I didn't know
he was on no -- expecting to die, you know. And then when J
saw him in the paper, I said damn, that is Herbert, he's just
bigger now, you know.
Despite our appeals, the gunman refused to come forward. For the past eighteen years,
he has lived a productive and law-abiding life. He is married, has a family, and has remained
in steady employment for the last fifteen years. He refuses to confess to his crime because of
the serious consequences to his life, his family, and his freedom. Although these eee are
legitimate, they pale in comparison to the ultimate consequence awaiting Herbert if the true
gunman is not identified. Therefore, we feel compelled to reveal the name of the individual
identified by Willie Bassette, Benny Ruffin, and Tifney Ward in sworn statements as the man
who robbed and shot James Wallace at the Holiday Inn in Petersburg on August 17, 1966.
His name is George Johnson.
Why Herbert permitted this travesty of justice to go on for so long is a good question.
The answer requires an understanding of the culture in which such men lived and the
expectations they had regarding our legal system. When Herbert Bassette was arrested in
1966, like all of us, he believed the system would work; since there was no valid evidence
against him, his innocence would be confirmed. On the other hand, George Johnson was his
friend; they ran together. And Herbert would not turn on his friend.
Unfortunately, our system did not work properly, and Herbert was convicted and
sentenced to a term of 99 years. Despite this outcome, Herbert still refused to turn on his
friend. The unwritten code by which he and his friends existed did not permit "snitching."
As a result, he served more than 13 years before he was paroled. At the beginning of this
sentence, Johnson -- also serving time for an unrelated crime -- offered to confess to the
shooting and exonerate Herbert. Herbert refused, however, observing that the likely result
would-not.be his release, but rather the conviction of Johnson. Herbert's observation, given
10
the racial climate in Petersburg, Virginia during the late Sixties,” was probably quite
insightful.
In light of this evidence, the conclusion by both judge and jury that Herbert posed a
future danger to society was based on false evidence -- Herbert's wrongful conviction for the
1966 crime. Of course, Herbert's 1980 sentencing jury was required to eliminate every
reasonable doubt before finding Herbert to be a future danger. Our law and society demand
no less. Conclusions of future dangerousness based entirely on false evidence never can
support a sentence of death, much less eliminate every reasonable doubt.* Justice can be done
only by commuting Herbert Bassette's sentence to life. A death sentence premised on a crime
that Herbert Bassette did not commit cannot stand.
¥ See, for example, Exh. 9, the Petersburg Progress-Index article reporting Herbert's arrest, the headline of
which identified Herbert only as a "Negro."
# The Attorney General abided by this principle in the case of Wilbert Evans, when it became clear that the jury
had based its finding of Evans’ future dangerousness on an inaccurate criminal record. Considering those
inaccuracies, and recognizing that the finding of future dangerousness was based solely on the inaccurate record,
the Attorney General was "constrained to concede that Wilbert Evans’ current death sentence cannot stand."
Exh. 10 (Letter from Attorney General's office to Judge W. R. Wright, Jr.). Justice, according to the Attorney
General, could be served no other way.
11
THE SUBSTANTIAL EVIDENCE AGAINST JACKSON AND THE FLIMSY
EVIDENCE AGAINST HERBERT DESTROY THE CERTAINTY OF
HERBERT'S GUILT
‘Ay The Substantial Evidence That Tyrone Jackson Killed Burwell
IE
Significant new evidence indicates that Tyrone Jackson killed Burwell.” This newly
discovered evidence reveals, among other things, that Jackson made a believable confession to
Robinetta Wall within days after Burwell's murder and that Jackson was with the admitted
accomplices on the night of the Burwell murder, contrary to their testimony. Because the jury
never heard this evidence, they turned a deaf ear to the other evidence against Jackson. Had
the jury considered this evidence, along with the existing evidence against Jackson, Herbert
would not be on death row today.
The best evidence that Tyrone Jackson murdered Burwell came from his own mouth.
He confessed to Robinetta Wall early in the morning after the murder:
Tyrone Leon Jackson told her the early morning of the 24th of
November, 1979, that he killed a boy last night for $97 . . . shot
him 5-6 times, threw him in some woods and he worked at the
Mascot Service Station, the reason for him killing the boy was
because he was some kin to his wife Karen and could easily
identify him, and it wasn't worth it etc... .
Copy of report of D. P. O'Keefe, Henrico Police, concerning statement taken of Robinetta
Wall on Dec. 12, 1979. Wall testified about the confession at Herbert's second trial, but she
¥ In December 1979, the police arrested and charged Tyrone Jackson with capital murder. All charges against
him were dropped inexplicably before a full investigation had been completed. The police never searched
Jackson's house or car for evidence of the robbery or murder. Trial II at 357-358. Herbert's attorneys sought to
ask the chief investigator in the Burwell murder, Henrico County Police Detective Daniel O'Keefe, why the
charges against Jackson were dismissed. But under instructions from the Attorney General's office, Detective
O'Keefe-has refused to meet with Bassette's attorneys.
12
scuttled the impact of Jackson's confession by claiming she did not believe him and thought he
was showing off. Trial II at 342.
Wall now has retracted her statement about Jackson's proclivity towards bragging. She
states that before Herbert's second trial, she was directed by the prosecution to claim that
Jackson's confession was unbelievable because he was a braggart. Exh. 11 (Affidavit of
Robinetta Wall). At no time did she consider Jackson a braggart or disbelieve his confession.
Id. She testified as she did during the trial because she feared being implicated in the murder.
Id. Indeed, during an interview of Wall on November 28, 1979, just four days after the
murder, Wall told Detective James Gaudet that she believed Jackson's confession, that no
reason existed for Jackson to confess to her if it were not true,” and that she was not surprised
by the confession because Jackson had shot people before. Exh. 12 (Police interview of
Robinetta Wall). The Commonwealth failed to provide Herbert's trial attorneys with this
exculpatory statement. Instead, it allowed false or misleading evidence to reach the jury.
Because Herbert's trial attorneys could not, and the prosecutor did not, correct Wall's
testimony, the jury was permitted to rely on this false and misleading evidence -- evidence that
materially impacted the outcome of the trial.
Wall has provided additional evidence that lends credence to Jackson's confession of
the Burwell murder, but that evidence never got to the jury. On the day of the robbery, Wall
says, she cased the Mascot station with Jackson and Betty Winfield. Exh. 11.
* In fact, Jackson also "bragged" to Wall that he had committed another armed robbery three days later in which
a gun was used. Trial II at 344. This was no mere boast, however; Jackson pled guilty to the offense.
13
In addition to Tyrone Jackson's confession, other evidence has been uncovered that
would have suggested to the jury that Jackson, rather than Herbert, committed the murder.
The accomplices crudely, but deliberately, conspired to deny that Jackson was with the
accomplices on the night of the murder. During Herbert's preliminary hearing, Winfield
stated that the parties present at Herbert's apartment after the murder were Herbert, his wife
Demetress, Green, Cook, Winfield, and Tyrone Jackson. Prelim. Hearing at 20 (See
Appendix C). She even related a conversation she supposedly had with Demetress and
Jackson. But at both of Herbert's trials, Winfield withheld this information from the jury.%
Green followed Winfield's cue by claiming that Tyrone Jackson was not with them on the
night of the murder. Trial II at 329, 333.
The truth about Jackson's whereabouts finally emerged during an interview that
Herbert's attorneys conducted with Jeanette Green. Although she had never admitted this fact
at trial, Green now places Jackson in the car with the accomplices as they looked for
someplace to rob. Exh. 13 (Affidavit A of Alfred Brown). She even suggested that Jackson
might have been carrying a pistol. Id. Green's recent revelation lends credence to Demetress
Bassette's testimony that in the early morning of November 24, 1979 (after the murder),
Winfield arrived at the apartment in a white Cadillac, carrying a large amount of money.
Trial II at 375-76. In 1979, Jackson drove a white Cadillac. Trial II at 279. This new
evidence from Wall and Green casts a new light on the other evidence against Jackson.
1 At both trials, Winfield testified that she, Cook, and Herbert returned to the apartment alone after the murder.
Cook and Herbert subsequently left to find Green and returned with her a short time later. Winfield maintained
that she first met Jackson after she left Herbert's house the next morning. Trial I at 162-63 (See Appendix D);
Trial I -at-249-52.
14
Unlike Herbert, for example, Jackson can be linked to the murder weapon. Winfield
suggested at both trials that the gun belonged to Jackson, and that she got it from him in a
trade:
I had it when we went into the house. Tyrone had done gave it
back to me and I put it in my pocketbook and carried it in 'cause
he wanted everything that - it was my pistol ‘cause he owed me
some money for drugs.
Trial I at 165.
Tyrone had it until we got to the front door and then when we
had got to the front door he had owed them some money for
some bam or something, so he gave it to me, and we went in the
house.
Trial II at 253. Whoever owned the gun, Jackson took charge of its disposal. Belinda
Atkinson and Gladys Mock, on the day after the murder, purchased the pistol from Winfield,
Jackson, and Green for $75. Trial II at 213-16, 218-21.
When Jackson sold the weapon, he explained to Atkinson that it had been used in a
murder. Jackson soon found a need for the gun again. As Belinda Atkinson indicated in a
police interview about Jackson's involvement in the November 27, 1979 bank robbery,
Jackson returned to her house several days after the murder to borrow the murder weapon.
Exh. 14 (FBI Interview of Atkinson). After committing the bank robbery, he returned the
weapon. Id. This important information never was brought to the attention of the jury.” The
® The jury also never learned that Jackson, Winfield, and Green were together the night before the bank
robbery, just as they had been both the day of the murder and the day after. Exh. 15 (FBI interview of Betty
Winfield). In direct contrast to Winfield's statement to the FBI, Green testified that she had never gone anywhere
with Jackson. Trial II at 329. .
15
gun appeared briefly in Herbert's hands, but only through the testimony of the accomplices,
while eyewitnesses with no interest in Herbert's trial linked the gun inextricably to Jackson.
Cook's reaction to Jackson's arrest for the murder in December 1979 also hints at
Jackson's guilt. Cook testified that he quit using drugs when he found out that Jackson had
been arrested for Burwell's murder:
After I heard the announcement that came on the T.V. about the
robbery I got scared and I went and hid in the house and I didn't
come back out for no drugs or anything at all... . On T.V. that,
I believe his name was Tyrone Jackson had got charged with that
charge, and that's when I got kinda scared.
Trial I at 133, 136. Cook's reaction to the arrest does not make sense if, as the three
accomplices swore, Jackson was not involved in the murder and they never saw him until after
the crime. Cook could not know that Winfield had met up with Jackson after the murder and
told him of Cook's involvement: he claimed not to have talked with Winfield since the
murder. Trial IJ at 204. The arrest of a man who could not implicate him -- if Winfield's and
Cook's testimony is to be believed -- should have relieved Cook, not frightened him. Cook
could not have been afraid that the investigation had begun because he already knew the police
were looking for Burwell's killer. Cook's behavior is most logically explained if Jackson was
involved in the crime.
Unlike Herbert, Jackson possessed a motive to both rob and murder Burwell. Jackson
was a heroin addict.” He worked part-time, but the thirty dollars he earned each day could
not cover his $75 per day heroin addiction. Exh. 16 (Jackson testimony from April 28, 1980
By all accounts; including those of the accomplices, Herbert was not.
16
trial, U.S. v. William E. Russell & George W. Ford). Less than 12 hours after the murder,
Jackson, Winfield, and Green needed more money because Jackson was "sick" and in need of
more drugs. Trial] at 164. Additionally, Jackson's wife, Karen was jailed awaiting trial, and
according to Karen, Jackson was trying to scrape up money for her bond. Exh. 17.
Evidently, Jackson considered Burwell and the Mascot station an easy mark. Winfield
confessed in a letter to a friend, dated July 15, 1980, that Tyrone Jackson had robbed Burwell
three times in the past. Exh. 18 (Winfield letter to Billy Ferby). These earlier robberies also
provided Jackson with the motive to kill Burwell. After four robberies of the same station and
same attendant, Jackson could hardly avoid being recognized. There is no evidence that
Herbert knew Burwell, and Cook suggested he did not. Exh. 19 (Affidavit B of Alfred
Brown).
B. The Dearth Of Reliable Evidence Against Herbert
L There Is No Physical Evidence To Implicate
Herbert
The same investigation that turned up ample evidence against Jackson was unable to
gather any physical evidence to link Herbert to the crime. This was not for lack of diligence
on the part of investigators. The police were at the scene within 12 hours after the murder.
Trial II at 99-127. They thoroughly investigated the scene and the surrounding area. They
located Burwell's clothes and personal belongings, took numerous pictures, and gathered the
forensic evidence available at the scene. On his arrest, the Commonwealth thoroughly
Tyrone's wife Karen testified that he spent $200 per day on drugs. Exh. 17 (FBI interview with Karen
Jackson).
17
searched Herbert's car and the area surrounding his apartment. Trial II at 123-24. Despite
these efforts, Detective Priddy, a Henrico forensic detective, was forced to admit that they
found no fingerprints, footprints, tire marks, bloodstains, clothing fibers, or other forensic
evidence to even suggest that Herbert was at the murder scene or took part in the crimes.
Trial II at 114. Moreover, they failed to connect the murder weapon to him. They could not
even show independently that Herbert owned a .22 caliber pistol. In short, the
Commonwealth's case rested precariously on the testimony of the accomplices, Winfield,
Cook, and Green.
2. There Are No Non-Accomplice Eyewitnesses
Against Herbert Nor Any Witnesses to
Corroborate The Accomplices' Stories
In contrast to virtually all capital convictions, the Commonwealth could not provide
any non-accomplice who witnessed Herbert committing any act that would implicate him in
Burwell's murder. Indeed, during Green's trial on July 29, 1980, Detective O'Keefe admitted
that his department could not locate anyone to corroborate even the smallest detail of the
accomplices' story. Exh. 20 (Green Trial Transcript). This was not because the crime was
played out in secret. Indeed, Herbert's accusers described a course of events in which many
people would have had the opportunity to see Herbert. For example, Herbert is supposed to
have marched Burwell from the Mascot station (located at the heavily trafficked intersection of
Mosby Avenue and Fairmount Avenue) up the hill to the waiting car. Yet the prosecution
produced no witnesses to this event, even though Green herself admitted, "there was [sic]
quite a few guys out there." Trial II at 323. Indeed, at Green's trial, the Commonwealth
stipulated that two men, Eugene Ampey and Darry Bean, saw Winfield and Green at the
18
Mascot station, but that neither had seen Herbert or any man. The Mascot station is a small
building set in a large open area; that Green and Winfield could see Herbert, but Ampey and
Bean could not, even though they could see Green and Winfield, is implausible.
The Commonwealth also could not produce a witness who observed Winfield allegedly
being forced into the car (after it supposedly screeched to a halt), even though the
neighborhood behind the service station is residential. Moreover, no eyewitness testified that
Green hid from Herbert by kneeling behind two cars even though Green stated that, "there
were two guys there playing dice or something." Trial II at 325.
In the absence of an independent eyewitness testifying against Herbert, one at least
might expect corroboration of the accomplices’ details by witnesses without a strong motive to
lie. For example, the Commonwealth could have produced a non-accomplice witness who
could testify that Herbert owned a .22 pistol like the one that killed Burwell, or a witness who
recalled Herbert trying to purchase such a weapon with Cook, or someone who could testify
that Herbert was in dire need for money. But despite its thorough investigation, the police and
prosecution could not unearth even one such witness. In fact, the converse is true. Several
independent witnesses exist who contradict aspects of the accomplices’ testimony.
Consequently, the jury convicted and condemned Herbert entirely on the testimony of three
known liars and conspirators.
+! Frank E. Crawley, Jr., owner and operator of the Mascot station in 1979, told Herbert's attorneys that he
spoke with Darry Bean soon after Burwell's disappearance was noted. Bean informed him that Burwell walked up
the hill behind the station with two women. This was contrary to the testimony of Winfield and Green. Belinda
Atkinson and Gladys Mock testified that Green was in Richmond with Jackson and Winfield on the day after the
murder, though Green denied this at trial. And David Phillips, Winfield's parole officer clearly remembered that
Winfield missed her appointment because of troubled feet in late December, not November, as Winfield asserted
inher fantastic account of torture at Herbert's hand.
19
Cc The Case Against Herbert Depends Entirely On The Testimony
Of The Accomplice Accusers
The Commonwealth produced three accomplice witnesses that linked Herbert to the
murder of Burwell. Their testimony is the only evidence that links Herbert to the crime.
These witnesses are inherently unreliable and were motivated by tremendous self-interest -- to
escape death in the electric chair -- to lie and shift blame to another person. In their effort to
deflect guilt, the witnesses manufactured conversations, events, and other paencawane the
crime. However, with each attempt at telling the "truth" the accomplices contradicted
themselves and each other, thereby casting serious doubts on the veracity of any version.
Moreover, because of their fear of the electric chair, the accomplices apparently entered into a
de facto arrangement with the Commonwealth, whereby they would receive lesser sentences
for providing the evidence necessary to convict Herbert. In their efforts to do so, the
accomplices collaborated on their stories to ensure consistency on the major issues, though
with limited success. As they fine-tuned their stories they also embellished once bare stories,
fabricated information, or changed the order of events to have the most damaging impact on
Herbert's defense.
lL The Character Of Herbert's Accusers
Betty Winfield, Jeanette Green, and Samuel Cook are career criminals, long-time drug
users, and suspects in Burwell's murder. Nothing in the accomplices’ backgrounds suggests
that they are inclined towards, or even capable of, telling the truth.
20
a Betty Jean Winfield!”
Winfield was the star witness for the prosecution. Winfield is a proven liar, schemer,
and manipulator. At Herbert's first trial, Winfield admitted to lying while under oath during
his preliminary hearing. Trial I at 170, 172. Her lying did not end at the preliminary
hearing, however. During the second trial, for example, Winfield testified that she never tried
to implicate Herbert in the November 27, 1979 bank robbery that Tyrone Jackson committed.
Trial II at 285-86. But in a January 8, 1980 interview, Winfield told FBI agent John Carroll
that:
They [the bank robbers] made their escape in Russell's car which
was driven by Herbert Russell Bassette. Bassette received $500
for driving the getaway vehicle. . . .
Exh. 15. As to her own involvement in that bank robbery, Winfield took the Fifth. Exh. 21.
(Winfield testimony from April 28, 1980 trial, U.S. v. William E. Russell & George W. Ford).
According to Demetress, Winfield's motivation for these lies was Herbert's refusal to provide
Jackson, and evidently Winfield, with an alibi for the bank robbery. Exh. 22 (Demetress
Bassette testimony from April 28, 1980 trial, U.S. v. William E. Russell & George W.
Ford).?' Fortunately for Herbert, he was in traffic court during the time of that robbery, and
a police officer, Robert House, testified to that fact at the bank robbery trial. Exh. 23 (House
testimony from U.S. v. William E. Russell & George W. Ford). But for this coincidence,
Winfield's lies might have ensnared Herbert as they ultimately did in the Burwell trial.
= Winfield relies on numerous aliases, including Betty Jean McNeil, Betty Jean Wingfield, Betty McNeil
Winfield, Betty Smith; and Priscilla Garland.
4” Jackson joined with Winfield in the attempt to frame Herbert. He told his wife Karen that Herbert got $1000
~ for driving the getaway car. Exh. 17.
21
Winfield went so far in Herbert's trial as to instruct her accomplices on specific false
testimony they should give. Winfield wrote several letters to Green and Cook that directed
each of them to "get their testimony straight" and offered obviously false versions of testimony
that might insulate Winfield and her two accomplices from conviction. The three were never
successful in coordinating or orchestrating their stories into a consistent, credible tale. These
facts not only underscore Winfield's malicious and mendacious nature, but expose her vendetta
against Herbert.
Winfield's nature was fully reflected in her criminal record. At trial, Winfield
admitted to five felony and ten misdemeanor convictions. Trial II at 229. In fact, Winfield
had been convicted of at least seven felonies and seventeen misdemeanors. Her convictions
included: felonious and unlawful wounding, armed robbery, possession of heroin with intent
to distribute, welfare fraud, grand larceny, shoplifting, and prostitution. Trial II at 229.
Between 1961 and 1980, she was arrested and charged with over seventy-five offenses,
including these: shoplifting, prostitution, possession of an unlawful weapon (razor),
solicitation for immoral purposes, lewd and lascivious behavior, battery, carrying a pistol
without a license, driving under the influence, driving without a license, disorderly conduct,
credit card theft, carrying a concealed weapon (pistol), robbery, felonious shooting, petit
larceny, grand larceny, disorderly conduct, trespassing, destruction of private property,
contempt, gambling, breaking and entering, possession of narcotics, possession of drug
paraphernalia, escape from custody, assault, armed robbery, tampering with a motor vehicle,
fraudulently obtaining welfare benefits, burglary, malicious damage, resisting arrest, ill fame,
“reating a turmoil, failure to answer summons, threatening to kill, and violation of the State
22
Health Code. Exh. 24 (Presentence Report of Winfield). Four days before the murder she
had been released from the penitentiary where she had been serving a sentence for larceny.
Prelim. Hearing at 15-16. In addition, she had been convicted as an accessory to the very
crime for which she was testifying - the murder of Burwell. Since Herbert's trial in 1980,
Winfield has been convicted of at least three other felonies. In 1981, Winfield was twice
convicted of grand larceny and once convicted of petit larceny. In 1982, she was convicted of
grand larceny and conspiracy. She also may have served time for violating the conditions of
her parole.
Winfield is a drug addict whose habit includes heroin, amphetamines, barbiturates, and
marijuana. Trial II at 230. She has been addicted to drugs since 1961, and in 1974, she
admitted to a $3,000 per day drug habit. Before she was charged for Burwell's murder,
Winfield had been institutionalized at least once in a mental hospital for heroin addiction.
Prelim. Hearing at 17. At least three times, the courts imposed, in addition to incarceration,
drug treatment and rehabilitation. She was unemployed at the time of the murder and obtained
money by shoplifting. Her criminal record indicates that she also earned her living through
prostitution. Even as late as December 1991, Winfield resided in Visions, a drug
rehabilitation clinic in Petersburg. Winfield has acknowledged that her drug habit has
permanently impaired her memory. Exh. 27 (Winfield letter to Sheppard).
Ina January 9, 1974 letter to Judge Rosenstock of the Petersburg General District Court, Winfield stated, "Sir
I know I was wrong for leaving the Clinic but you've never had a $3,000 dollar a day habit and got taken off it
without any medication.” Exh. 25 (Winfield letter to Judge L. A. Rosenstock).
23
b. Samuel "Dap" Cook
Cook had been convicted of a variety of felonies and misdemeanors when he testified,
including breaking and entering and larceny. Trial II at 191. He also is a drug addict who
admitted that he had taken amphetamines every day and heroin several times in November
1979. Trial II at 168-71. Cook travelled to Richmond the night before the murder to shoot
heroin and Preludin, an amphetamine (also known as "bam"). Trial I at 102, Trial II at 148.
The afternoon of the murder he was under the influence of both heroin and Preludin. Trial II
at 150. He had been treated for drug addiction in the past. Trial II at 151. At the time of the
murder he had been unemployed for at least five months, yet still maintained a drug habit of at
least $60 per day. Trial I at 120. He testified that he made his living by shoplifting and
gambling. Trial II at 189-90. Since Herbert's trial, Cook has been convicted of receiving
stolen property.
(oy Jeanette Thienia Green’
Green was 23 when she testified. As a minor, Green was convicted of at least three
offenses. In 1976, Green was convicted of first-degree murder and armed-robbery.
Masquerading as a Housing Authority representative, Green duped the victim, James Brown,
inio opening his front door. After her accomplices had gained entrance to the home, Green
returned to the car. There she waited as her friends robbed Brown of $550 and then murdered
him. During the trial, Green admittedly was the "star witness" for the prosecution. Exh. 26
(Green letter to Judge Appollo [sic]). Because her testimony was so effective -- one defendant
+8” Green uses the following known aliases: Jeannette Allen and Thienia Allen.
24
was convicted of murder and sentenced to twenty-five years, while the other received five
years for robbery -- Green received suspended sentences. She received twenty years for -
murder, which was suspended on good behavior for fifteen years, and five years for robbery,
of which two years were suspended. Because she was on probation for an unknown federal
offense when she aided in Brown's murder, she was sentenced in federal court to three years
in prison in California for violating federal probation.
Green began using drugs when she was fifteen. Trial II at 330. She has numerous
convictions for drug offenses, including a 1983 conviction for possession of Preludin. Drug
abuse has exacted a heavy toll on Green. Ina recent interview, she acknowledged permanent
loss of memory for the periods when she was addicted. Around the time of the murder, Green
was addicted to heroin and on a binge. On the day of the murder, she had been taking
Preludin at least since the day before. Trial II at 330. She obtained more Preludin and heroin
as the day wore on and injected them with Winfield and Cook. Trial II at 320. In addition to
the drugs Green was injecting, she had been drinking large amounts of alcohol. Trial II at
331. She was so drunk that she eventually got sick at the Mascot Station. Trial II at 323-24.
It is unclear how she made her living. She was unemployed at the time of the murder, but she
often earned money as a prostitute.
25
2. The Story Told By Winfield, Cook. And Green
Does Not Hold Up Under Scrutiny
Herbert was tried twice.1# Winfield and Cook testified in both trials. Green testified
only at Herbert's retrial. In addition, Winfield testified at Herbert's preliminary hearing on
February 15, 1980. All three accomplices provided statements to the police when arrested. '?
Recently, Green and Cook talked separately with Herbert's attorneys and private investigator
about the events of November 23-24, 1979. Accordingly, eleven accounts of the events
surrounding the murder exist -- four from Winfield, four from Cook, and three from Green.
This section reviews and tests the stories of Winfield, Cook, and Green. What this test
reveals is that each accomplice is incapable of telling a consistent, credible story; few details,
material or otherwise, survive from one telling to the next. During any one stage, the
accomplices contradict one another, and from one stage to the next, they contradict themselves
and the others. While some inconsistencies are relatively minor, most are glaring.
This section does not attempt to outline all the inconsistencies and contradictions in
their accounts -- it analyzes only a handful of the most egregious errors. The analysis of the
contradictions reveals fabrication, manipulation, and failed efforts at collaboration by the
accomplices. Several lies are so obvious and outrageous that each alone casts doubt on the
prosecution's case. The remaining material contradictions are listed at the end of this section
to illustrate the overwhelming nature of this evidence.
+8 His first trial was heard on June 17-20, 1980, and his second trial occurred on November 19-22, 1980.
1! Winfield provided a statement to the police on January 8, 1980. Exh. 28. Cook and Green were interviewed
separately by the police on March 7, 1980. Exh. 29; Exh. 30.
26
a. Inconsistencies, Contradictions, and Lies
Two Monte Carlos
Herbert does not dispute that on the afternoon of November 23, 1979, Winfield,
Green, and Demetress drove to Herbert's place of work to pick up his paycheck. He does
contest, however, Cook's testimony surrounding Herbert's activities during this time. The
first time Cook was questioned on this topic, he stated that he and Herbert waited at the
apartment for the women to return: "Betty and ah, Jeannette went to get his check with his
wife and me, me and him stayed there." Exhibit 29 (emphasis added). In the first trial, he
abandoned this story in an effort to show Herbert's intent and premeditation to commit armed
robbery by saying that while the women were away, he drove with Herbert to find a second
gun to use in the robbery. Trial I at 107-08.
Pressed for details about this ride, Cook asserted that he and Herbert drove Herbert's
black Monte Carlo to find the second gun. Id. at 108. Winfield, however, testified that
during this same time, she, Demetress, and Green drove in the black Monte Carlo to pick up
the paycheck. Trial I at 156. Therefore, according to the prosecution's two main witnesses,
either Herbert had two black Monte Carlos, or the same car carried different people in
different places at the same time.
Recognizing that he had been caught in a lie, Cook altered his story a third time for
Herbert's second trial. Testifying again, he stated that he and Herbert left in "another car."
27
Although in the first trial he specifically recalled that the car was a black Monte Carlo, Cook
now remembered neither the color nor the make of this vehicle. Trial II at 205-206.
The Abduction
The accomplices suggested that Herbert abducted Burwell and, alone, led him to the
car at gunpoint. The independent evidence that exists suggests this story is untrue. Frank E.
Crawley, Jr., the owner and operator of the Mascot station, arrived at the station shortly after
learning of Burwell's disappearance and spoke with Darry Bean, the other pump attendant on
duty that night. Bean informed Crawley that Burwell walked up the hill with nvo women. He
never mentioned seeing a man with Burwell. Nor did Eugene Ampey, whose testimony was
stipulated in Green's trial. Thus, the accomplices’ testimony that Herbert was present at the
Mascot station not only is uncorroborated, it is at odds with the available independent
evidence.
The Shooting
Winfield not only contradicted herself and the other accomplices, but she also
embellished her lies as she practiced them. For example, in her police statement, Winfield
stated that she only heard the gun being fired and did not witness the actual shooting.
Exh. 28. During the preliminary hearing, she claimed that she watched, but then turned her
head: "Did I see? It was dark. I didn't see it. . . . I turned my head because I didn't want to
see it." Prelim. Hearing at 24-25. She turned back in time for the first trial, where she
+ Demetress and Herbert owned another car in 1979, but the evidence that this car was inoperable was not
disputed. Trial II at 382.
“Darry Bean disappeared shortly after the murder and has not been located.
28
claimed for the first time that she saw Burwell kneeling when he was shot. Trial I at 169.
Then at the second trial, Winfield added the most provocative piece of testimony. After
equivocating over whether Burwell was lying down or kneeling (another inconsistency), she
claimed that she knew Burwell was kneeling because "That's when you're saying your
prayers."2' Trial II at 284-85.
The Pistol Whipping
Winfield's credibility also is damaged by her deliberate manipulation of testimony, as
evidenced by her recounting of events that occurred between Herbert and her in the car.
During the first trial, Winfield testified about the following event as they left the Mascot
station:
He started driving around, driving real crazy like and I went to
call his name, and he just turned around and hit me in the mouth
with his pistol.
Trial I at 160. In this version, Burwell must still be alive for Winfield's use of Herbert's
name to matter. But in her version for the second trial, Burwell is dead and Herbert has a
different reason to hit Winfield, one calculated to paint for the jury a much worse image of
Herbert:
After we left the place [where Burwell was killed] then he rode
back and on the way back I told him, I said, "you mean to tell me
you took this boy's life for $97", right. So that's when he turned
around and hit me with the pistol in my mouth.
2»! Green stated that Winfield told her that the boy was shot while lying on the ground. Trial II at 327. Cook
also testified-that Burwell was shot while lying on the ground. Trial II at 193.
29
Trial II at 248. This material discrepancy cannot be due to a faulty memory, but rather must
be a product of intentional manipulation and deceit.
Green's Whereabouts
Disturbing inconsistencies surround Green's whereabouts after the murder. By the
second trial, Winfield, Cook, and Green agreed that Herbert and Cook drove around after the
murder, found Green, and brought her to the apartment. But Winfield, in two earlier
versions, told different stories. In the first, Winfield presumably never saw Green again
because she is never mentioned again. During the preliminary hearing, however, Winfield
stated that Green walked into the apartment by herself later that evening after Cook had left
for Petersburg. Prelim. Hearing at 20. Cook came close to this story in a recent interview,
when he stated that he did not see Green again until he returned to Petersburg. Exh. 19. This
version, of course, contradicts his testimony at trial. Trial I at 116-17.
During Herbert's second trial, Green claimed that she learned about the murder from
an agitated Winfield in the bathroom of Herbert's apartment. Trial II at 326-27. Winfield did
not corroborate Green's story. She testified instead that Green refused to come into Herbert's
apartment after she was found because she was "scared." As a result, Winfield walked out to
the car and told Green what had happened. Trial II at 250. Cook offered yet another version.
He testified that during the ride to Herbert's apartment, Herbert told Green about the murder.
Trial II at 162. Green changed her story in a recent interview and adopted Cook's version.
Cook and Green testified at the second trial that, upon learning of the murder, Green
asked to be taken to the bus station so she could go home to Petersburg. Cook recently
recanted this testimony in an interview with Herbert's attorneys. He stated that after leaving
30
Green at the Mascot station, he did not see her again until he returned to Petersburg. Exh. 19.
During this ride, Green claimed Herbert allegedly confessed to the murder and threatened to
kill Green. Trial II at 328; Exh. 30 at 8. Winfield's testimony in the second trial lends no
support to Green's version: Q: "Before you left and before Dap left were you ever in the
company of Jeannette Green?" A: "For about five minutes." Q: "Did y'all go anywhere?"
A: "No.". Trial II at 251.
During the first trial, Winfield did corroborate that Green was taken to the bus station.
In her story, however, Winfield and Tyrone Jackson drove Green to the station the next
afternoon after they had sold the murder weapon for drug money. "Then me and Tyrone and
Jeannette, we're lucky ‘cause Jeannette needed bus fare to get to Petersburg with. She didn't
have no money, so we took and carried her down to the bus station and I gave her the money
to go home with." Trial I at 166. This version of events provides one of the few instances
where one of the accomplice's stories can be corroborated by the testimony of independent
witnesses. Belinda Atkinson and Gladys Mock bought the murder weapon from Jackson and
Winfield the next day. They confirmed that Green was present with Jackson and Winfield
during the sale. Trial II at 215-16, 221. Significantly, this version omits any mention of
Herbert.
Winfield's Torture
Finally, Winfield also told several incredible accounts of what happened to her after
she sold the murder weapon. In the first trial, Winfield stated that she returned to Herbert's
apartment to get her clothes after she and Jackson sold the gun, "but I didn't never get them
‘cause when I went in there to get them Herbert and Demetress held me down and cut me all
31
up with a piece of barb [sic] wire fence." Trial I at 167. She went on to recount that she
could not leave Herbert's apartment for two days because her feet "was swollen up and [she]
couldn't walk." Trial I at 168.
In the second trial, the story evolved substantially. In this incarnation, Winfield went
back to Herbert's apartment to get her clothes, and while there fell asleep. When she awoke,
Herbert had a "shotgun" in her ear and accused her of turning him in. Trial II at 255. "I
waited until he took the pistol out of my ear and then I left the house. . . .". The confused
Commonwealth's Attorney tried to get her back on track:
Miss Winfield, I asked you about barbed wire, do you know what that is?
That's what he used to cut me up with.
When did he do that?
The same morning he put the pistol at my ear, shotgun rather.
rOPRO
Trial II at 256. Was it a shotgun or a pistol? Did she fall asleep or was she attacked on
entering the house? Did Herbert attack her with barbed wire and then put the weapon in her
ear, or vice versa? Most confusing, did she leave the house soon after the incident with the
pistol/shotgun or were her feet were so swollen that she could not leave the house for three
days?
Winfield asserted she could verify this incident through her parole officer. She claimed
to have called her parole officer to cancel an appointment because the injuries inflicted on her
by Herbert prevented her from walking. Trial II at 260. Called by the prosecution, her parole
officer, David Phillips, confirmed that Winfield did call to cancel an appointment because her
feet were swollen. However, he specifically recalled that he received this call around
Christmas, not Thanksgiving. Trial II at 299. Winfield gave a more likely explanation for the
32
wounds she blamed on Herbert when she admitted, in a 1974 letter found in one of her
criminal records in Petersburg Circuit Court, that her heroin addiction had caused her to "cut
myself all up." Exh. 27 (Winfield letter to Sheppard). Here is another incident where
corroboration of the accomplices’ story might be expected, but contradiction results instead.
Other Inconsistencies
Many other inconsistencies infest the testimony of the accomplices. The following list
provides a brief look at the problems inherent in the testimony and illustrates the implausibility
of Herbert's guilt beyond a reasonable doubt:
1. The accomplices contradict themselves and each other in their
testimony about when Herbert supposedly decided to commit
robbery. Winfield - Trial I at 153-55; Trial II at 237; Green -
Exh. 30 at 2-3; Trial II at 321; Cook - Trial I at 124, 127.
2. Cook and Winfield cannot agree whether it was daytime or
nighttime when the group left Herbert's apartment to commit the
robbery. Winfield - Trial II at 239; Cook- Trial I at 109; Trial II
at 197.
35 The conspirators contradict each other about who suggested the
Mascot service station as a suitable target. Winfield - Trial II at
240; Cook - Exh. 29 at 2; Trial I at 110; Trial II at 157;
Exh. 19. Green - Exh. 30 at 3; Trial II at 322.
4. Winfield cannot consistently testify about the abduction of
Burwell. Exh. 28 at 3; Prelim. Hearing at 10-11; Trial I at 159;
Trial II at 243-44.
5. Winfield lies about trying to escape from Herbert and about
being forced into his car after the abduction. Winfield - Trial I at
159-60; Trial II at 244; Green - Exh. 30 at 4; Trial II at 325;
Cook - Exh. 29 at 2; Trial I at 113; Trial Il at 159.
6. Cook and Winfield dispute who drove the car as they fled the
Mascot station. Cook - Trial Il at 159; Winfield - Trial II at 244.
33
10.
ll.
12.
Is.
14.
15.
16.
Cook and Winfield could not agree on whether Herbert gave
Winfield the murder weapon. Cook - Trial I at 113-14; Trial II at
159-60; Winfield - Trial II at 283-84.
Cook, Green, and Winfield cannot agree on their story about
purchasing the drugs that they injected in Herbert's apartment.
Cook - Exh. 29 at 1; Trial I at 105-06, 125-26; Trial II at
148-50; Green - Trial II at 317-19; Winfield - Trial II at 234-36,
277. ,
The accomplices disagree about which drug they injected on the
night of the murder. Winfield - Trial I at 152-55 (Preludin);
Trial II at 234-36, 277 (heroin); Green - Trial II at 317-319
(Preludin); Cook - Trial I at 125-26; Trial II at 150 (heroin).
Cook and Winfield contradict themselves and each other about
when Burwell was forced to strip. Cook - Exh. 29 at 2; Trial I
at 114; Trial II at 159, 194; Exh. 19; Winfield - Trial II at
244-45.
Cook cannot properly identify where the murder occurred.
Trial II at 159.
Cook and Winfield contradict themselves about what happened to
the money from the robbery. Cook - Trial I at 132; Trial II at
160; Winfield - Trial I at 161, 169; Trial II at 247.
Cook and Winfield contradict themselves and each other about
whether the pistol was reloaded by Cook after the murder.
Cook - Trial J at 115; Trial If at 160; Winfield - Trial I at 161;
Trial II at 285.
Cook and Winfield have conflicting accounts of who disposed of
the pistol. Cook contradicts himself within several pages in his
testimony at trial. Cook - Trial II at 161, 164; Exh. 19; Winfield
- Trial II at 252.
Winfield inconsistently testified about who sold the murder
weapon. Prelim. Hearing at 34; Trial II at.252-53.
Winfield inconsistently testified about what they received in
return for the murder weapon. Prelim. Hearing at 34; Trial II at
253.
34
17. Cook's and Winfield's testimonies conflict regarding Cook's
departure from Herbert's apartment. Winfield - Prelim. Hearing
at 20; Trial II at 250-51; Cook - Trial I at 118.
18. Winfield lies about using drugs on November 23-24, 1979.
Winfield - Prelim. Hearing at 33; Trial I at 177; Trial II at 235-
36; Cook - Trial I at 125-26; Trial II at 192.
19. Green lies about using heroin on November 23-24, 1979. Green
- Trial II at 330; Cook - Trial II at 150; Winfield - Trial I at 176.
20. Cook both denies and admits knowing Tyrone Jackson. Cook -
Trial I at 136; Trial II at 165.
3. Winfield. Cook, And Green Had A Motive For
The Crime And The ortunity To Collaborate
On Their Story, And Winfield And Jackson Had
Tried To Frame Herbert Before
The Burwell crime was not the first instance when Winfield implicated Herbert.
Though she specifically denied doing so at Herbert's trial, Winfield tried‘to frame Herbert for
the bank robbery committed by Jackson. Winfield told FBI Agent Carroll that Herbert drove
the getaway car during the bank robbery. Jackson assisted in the frame: he told his wife
Karen that Herbert drove the getaway car. Both were lying. At the trial of Jackson's
accomplices, Henrico County Police Officer Robert F. House exonerated Herbert completely.
He testified that while Jackson was robbing the bank, Herbert was in Henrico County Traffic
Court to pay a ticket Officer House had given him. Winfield's and Jackson's motive to frame
Herbert, according to Demetress, was that he refused to give them an alibi for the bank
robbery.
35
In addition to their questionable character, unreliable testimony, and Winfield's
previous attempt to frame Herbert, his accusers possessed ample motive and proclivity to
commit such a crime. Cook and Green were in Richmond on a drug spree and had run out of
money and drugs. Winfield, four days out of the penitentiary, had no place to live, no money,
and was herself on a drug binge. Green herself suggested finding money to buy more drugs.
Trial I at 156.2!
Moreover, each witness possessed a motive to lie. Winfield and Jackson were lovers.
Trial II at 262. Cook and Green also were lovers. Trial II at 101, 131. Furthermore,
Winfield, Cook, and Green were long-time friends, who grew up together in Petersburg.
Trial II at 283. These close ties by themselves provide ample motive for the accomplices to
lie.
Several other possible motives exist for their fabricated testimony. First, they may
have wanted to protect the real murderer, Tyrone Jackson. As noted above, Winfield admitted
that she was "sure enough tight" with Jackson. Trial II at 262. This bond of allegiance likely
was coupled with a sense of fear. Robinetta Wall stated that Jackson threatened to kill both
Wall and Winfield if they ever exposed him. Exh. 11. Such a threat from Jackson probably
shocked neither woman: in her November 28, 1979 statement, Wall stated that she was not
surprised by Jackson's confession that he had killed Burwell because he had shot people
before. Exh. 12. Finally, the accomplices may have manipulated facts simply to avoid death
2 Herbert's account of November 23, 1979 makes more sense logically, especially when considering motives.
Winfield, Cook, and Green arrived at Herbert's apartment on Friday afternoon. Herbert asked his wife to pick up
his paycheck. When the group returned, Winfield asked for money, but was rejected by Herbert. "If I had got
my check, I-was going to give it to her, but I didn't-have it to give to her to spare right then." Trial II at 436.
36
in the electric chair. Winfield implicated Herbert long before Cook and Green were
questioned. From that point, the police considered Herbert the murderer. Therefore, it
benefitted Cook and Green to side with Winfield and focus blame on a single "triggerman." In
addition, Winfield's story tended to absolve them from direct participation in the murder. In
letters to Cook and Green, Winfield repeatedly instructed them that they would avoid the death
penalty only if they could convince the jury that they did not participate in the crime in any
way. Exh. 31 (Winfield letters to Green); Exh. 32 (Winfield letter to Cook).
The credibility of the witnesses and their stories also must be questioned based on their
close involvement with the prosecution. Each accomplice was charged with capital murder.
Although each denied an agreement with the Commonwealth to favor them in return for a
coliviction of Herbert, the circumstances indicate that a de facto agreement did exist.
For example, Herbert's initial trial was scheduled for June 17, 1980. Cook was
scheduled to be tried July 31, 1980. After Herbert's first trial resulted in a hung jury and was
rescheduled, the Commonwealth successfully requested that the court postpone Cook's trial
until after a verdict for Herbert was returned in the second trial. Trial II at 175-88. Even
more interesting is the fact that Winfield and Cook each received only 12 month sentences as
accessories after the fact for their roles in the murder of Burwell. Incredibly, in light of her
past record and her role in Burwell's murder, Winfield's sentence was suspended.
The story told by Winfield, Cook, and Green was a clumsy, artless attempt to place all
blame for the murder on Herbert. The accomplices portrayed themselves as innocent, duped,
drug addicts who did not realize what was happening and were both terrified and horrified by
Herbert and the violent crime. Between them, however, these duped innocents had been
37
convicted of murder, felonious wounding, assault, battery, armed robbery, breaking and
entering, grand larceny, distribution of narcotics, welfare fraud, and prostitution. We now
know, based on Winfield's letters to Cook and Green, that the accomplices created this
impression intentionally to avoid the electric chair themselves. Exhs. 31, 32.
The parties also had ample opportunity to coordinate their stories. They were not
arrested until several months after the murder and all lived in Petersburg. By Green's own
testimony, she was in contact with Winfield before they testified. Trial II at 332. Green also
testified that she spent two weeks in the City jail with Winfield before testifying at trial and
admitted to talking with her during this time. Trial II at 332. This, of course, provided the
women with ample time to refine their fabrication of Herbert's involvement and may explain
some of the stunning reversals in Winfield's testimony between the preliminary hearing and
trial. Moreover, Winfield testified that she wrote Green "a whole lot of letters" while they
were awaiting trial. Trial I at 195. In these letters and in others to Cook, Winfield told them
how to testify and what to say. Exhs. 31, 32. For instance, she told Green, "You've got to
get this down to a tee,", and told both Cook and Green to “get this down like you would a
record you like." Id. Winfield also said, "I know that if I slip we all go down." Exh. 31.
D. Other Evidence Suggests That Herbert Was Not Involved In The
Crime
L Herbert's Lack Of Motive
Evidence of Herbert's motive to rob the Mascot station was so lacking that the
Commonwealth hardly tried to prove one. Although the Commonwealth implied that he
committed the robbery because he could not get his paycheck, no evidence was presented that
38
Herbert desperately needed the money that Friday evening, or that he-could not get the check
on Saturday. Certainly, the accomplices did not support this notion; they claimed that Herbert
discussed committing robbery even before he sent his wife for the check and discovered he
could not get it. Trial I at 106.
The prosecution produced no evidence that Herbert needed any money. Unlike his
accusers, Herbert worked regularly, as an assistant foreman at Professional Coatings, Inc.,
making approximately $320 per week. Trial II at 366. Demetress earned approximately $600
per month as a Parent Educator in the Richmond public school system. Trial II at 379-80. In
stark contrast to his accusers, Herbert did not use drugs. Trial II at 280, 432. Thus, he did
not share the addiction-driven motive of his accusers, who constantly needed money to feed
their habits. If a need for money in fact drove Herbert to rob the Mascot, Cook's testimony
that the proceeds of the robbery went to Winfield for drug money cannot be explained.
No reason exists why Herbert would accompany this trio to rob someone for drug
money when he knew only one of them, did not need the money, and had no reason to kill
Burwell. Jackson had many reasons, however, as we have explained above.
2. Credible Witnesses Testified Herbert Could Not
Have Killed Burwell
Since the day he was arrested twelve years ago, Herbert has maintained his innocence.
Through two trials and uncounted interviews, he has repeated his story with consistency and
conviction. This in itself is unusual among death row inmates, nearly all of whom have
confessed to their crimes. The consistency and continuity of Herbert's story contrasts sharply
with the constantly changing stories told by Winfield, Cook, and Green.
39
In his defense, Herbert produced five witnesses -- himself, Demetress, his mother, his
mother-in-law, and his niece -- who testified as to his whereabouts at the time of the robbery
and murder. According to these witnesses, Herbert spent time with his family while the crime
occurred.
Herbert and Demetress testified that Winfield, Cook, and Green came to Herbert's
apartment on Friday afternoon. Trial II at 434. Demetress, Winfield, and Green went to get
Herbert's paycheck, but Herbert's boss had left. On the way back, she stopped at a store to
allow Winfield and Green to get a drink. Trial II at 369. Cook left Herbert's apartment for
awhile, but returned before the women got back. Trial II at 435.
When the women returned, Winfield asked Herbert for $50. Herbert testified that he
would have lent her the money had he gotten his paycheck, but without it, he could not spare
$50. Trial II at 436. Winfield became angry and left with Cook and Green. Trial I at 273.
Herbert did not see them again that night. Trial II at 436.
After Winfield, Cook, and Green left, Herbert and Demetress took Demetress's
daughter and drove to the southside of Richmond to have her mother's car repaired. Trial II at
370. Earlier in the week, a man named Mike Wade had hit her mother's car and had agreed to
fix it. Id. Herbert and Demetress picked up the car and arrived at Wade's house by 7:00
p.m. Trial II at 386. From there, they drove "a long distance," Id. at 371, to another man's
house in Chesterfield for an estimate. Herbert and the family then drove home. On the
2! Mike Wade corroborated that Herbert, his wife, and her kids met with him at his house in late November,
1979. He verified that they then drove to Chesterfield County to have somebody perform an estimate. Exh. 33
(Wade testimony from Plenary Hearing).
40
way, they stopped by Herbert's mother's house, at approximately 9:00 p.m., for about two
hours. Trial II at 419. Finally, they dropped the car back at Demetress's mother's house at
approximately 11:00 p.m., Trial II at 388, and returned home around 11:15 p.m. Id. at 387.
This story was corroborated by Demetress's mother, Azzalee House, and Herbert's mother,
Carrie Bassette. The prosecution made no attempt to impeach or discredit the testimony of
House and Mrs. Bassette.
Herbert and Demetress went to bed before midnight. Demetress further testified that
Winfield came home at 3:00 or 4:00 in the morning. Trial II at 375. Winfield arrived in a
big, white car that looked like a Cadillac, and she was carrying a large sum of money. Id.
A third alibi witness, Georgeanne Mason, then 23 years old, also confirmed that
Herbert came over to his mother's house that night. Unfortunately for Herbert, in her zeal to
convince the jury, Mason created a journal that contained an entry that corroborated the alibi.
The prosecution exposed this falsehood, and although her substantive testimony that Herbert
went to the house that night was unimpeached, her credibility before the jury was ruined. This
created a domino effect, and the jury discredited all of Herbert's alibi witnesses.
Without Mason's mistake, the testimony of the trio of accusers would not have been
enough to condemn Herbert. Two other witnesses, both upstanding citizens without criminal
records (one of whom worked for a Richmond Circuit Court judge for over twenty years),
confirmed Herbert's whereabouts and firmly established his alibi. The Commonwealth never
was able to discredit this testimony. Moreover, Mason's perjury conviction concerned only
the journal, not her testimony that Herbert could not have committed the crime.
41
3. Winfield's Arrest
Herbert's activities on the day Winfield was arrested do not reflect the actions of
someone who had participated in a murder. After moving out of Herbert's apartment,
Winfield moved into the Eggleston Hotel. Herbert learned that Winfield's probation officer
was looking for her because she had missed a meeting. He and Demetress went to the hotel,
told her this, and offered to drive her to the probation office. Although supposedly terrified of
Herbert and Demetress, Winfield freely accepted the ride. While at the probation office
visiting his probation officer, Herbert learned that Winfield had been arrested for murder.
Rather than fleeing Richmond, he and Demetress went to Seigels grocery store to do some
shopping: "bread mostly, juice, eggs." Trial II at 441.
E. Conclusion
Grave doubts persist as to Herbert's guilt. Much of the available evidence points to
Jackson. He confessed to Robinetta Wall, and contrary to her testimony at trial, she believed
him, partly because he had shot people before. The accomplices deliberately withheld from
the jury evidence that Jackson was with them on the night of the murder, and indeed, Winfield
and Green were with Jackson when he sold the murder weapon to Belinda Atkinson and on the
night before the bank robbery. Addicted to heroin like the other accomplices, Jackson had a
demonstrated need for money, and according to Winfield, he had robbed the Mascot station
before.
2! Winfield alleged that after the murder, when Winfield returned to the apartment, Herbert held her down and
cut her breasts and feet with barbed wire, while Demetress looked on and laughed. Trial I at 167. Our review of
the evidence, however, reveals that this story is manifestly unbelievable. See p. 31.
42
By contrast, against Herbert there is no physical evidence or reliable eyewitness
testimony to link him to the crime. There is only the self-serving testimony of three
accomplices with abysmal histories of veracity and reliability. All were drug addicts, all were
career criminals, and all were admitted or demonstrated perjurers. Together they weaved a
story of Herbert's guilt, but they never agreed among themselves what had happened, and they
altered their stories constantly. This was true even though the accomplices had many
opportunities to collaborate on their story. Winfield wrote numerous instructive letters to
Cook and Green, telling them exactly what lies to tell. The accomplices had good, self-
serving reasons to lie about the crime, including a de facto deal with the Commonwealth.
Notably Winfield and Jackson also tried to frame Herbert for the bank robbery they had
committed, but this effort failed in the face of a police officer's testimony that Herbert could
not have had any involvement in the bank robbery. Not a single detail of the accomplices’
story could be corroborated, and in the few cases where corroboration might be had, the result
instead is contradiction. Credible witnesses testified that Herbert did not commit the crime,
and other evidence weighed in favor of Herbert's innocence.
The evidence that Jackson killed Burwell was substantial and significant. Little of that
evidence made it to the jury, however, and the impact of the evidence that did was diminished
by the deceit of the accomplices and the misconduct of the prosecution. By contrast, the
evidence against Herbert was flimsy and filled with contradictions. Viewed as a whole, this
evidence creates compelling doubts as to Herbert's guilt.
43
A CONVICTION BASED SOLELY ON ACCOMPLICE TESTIMONY.
HISTORICALLY HAS NOT LED TO THE DEATH SENTENCE AND.
SHOULD NOT IN HERBERT'S CASE
\s
Central to capital litigation is the principle that no one may be sentenced to death unless
the evidence attains an appropriate and acceptable level of certainty and reliability. We can
tolerate, in other words, only a slight amount of risk that an innocent or undeserving person
might be put to death. This is an issue not of politics, but of values. It is contrary to those
values, inherent in our system of capital litigation, that any person should be led to his death
on the strength of evidence as poor in quality, as lacking in consistency, and as short on
credibility as the evidence used against Herbert.
So accustomed are we to the difficult burdens faced by prosecutors in convicting
persons charged with crime -- for example, the various constitutional privileges against
unreasonable search and seizure and self-incrimination -- that we often assume that convictions
remove all doubt as to guilt. We forget that trials are affairs of probability. A criminal
conviction is actually a conclusion by the jury that the probability that defendant did not do the
acts charged is acceptably small. This fact is indicated by the "beyond a reasonable doubt"
standard for conviction. Absolute certainty is neither required nor expected.
One reason we are willing to accept less than absolute certainty in criminal convictions
is that the consequences of a mistake are not irredeemable; although the state cannot turn back
the clock, it can release the prisoner and remove the stain from his name, and it can
compensate him in other ways if it wishes.
This reason cannot salve our conscience when death is the penalty. Thus, while the
certainty we require in the ordinary criminal case is high indeed, the certainty we must
44
demand before administering the lethal shock is virtually absolute. Above we explained the
defects in the evidence against Herbert. Those defects destroy whatever certainty might attach
to Herbert's conviction. But if those defects did not exist, there still would be reason to
suspect the justness of Herbert's sentence.
Certainty is built on evidence, and some types of evidence inspire greater confidence
than others. Physical evidence -- fingerprints, DNA comparisons, ballistics tests -- provides
perhaps the surest proof of guilt or innocence. The persuasive force of this evidence varies, of
course, but this is objective evidence, strongly resistant to manipulation, alteration, and bias.
Because of this nature, physical evidence provides an acceptably firm footing for capital
punishment. Confessions can be relied on as the basis for execution because it is so nearly
unimaginable that defendants would manufacture evidence against themselves. Another class
of evidence is testimony from persons not involved in the crime who were able to place the
defendant at the scene, could corroborate key details of the prosecution's case, or witnessed
the crime and identified defendant as the perpetrator. This testimony is reliable because the
witnesses have no interest in the outcome of the trial that motivates them to alter their
testimony.
By contrast, accomplice testimony has been denigrated as unreliable throughout our
history. Indeed, between 1790 and 1826, some Virginia courts considered accomplice
testimony so uncertain a basis for conviction that they banned it outright. Byrd v.
Commonwealth, 2 Va. Cases 490 (1826). Since then the litany of cautions and complaints
about accomplice testimony has continued unabated. The Virginia Supreme Court often has
said that juries should not convict on the basis of accomplice testimony, unless other proof
45
shows the defendant's connection to the crime. Brown v. Commonwealth, 2 Leigh 777 (1839);
Johnson v. Commonwealth, 224 Va. 525 (1982). This is because "accomplice testimony is
peculiarly susceptible to influences of bias, prejudice and motivation for perjury and therefore
involves the problem of reliability." Smith v. Commonwealth, 218 Wa. 455 (1972), and
/ because "the source of accomplice testimony is tainted with the temptation to exculpate oneself
by laying the crime upon another." Dillard v. Commonwealth, 216 Va. 820, 821 (1976). In
short, accomplice testimony historically has been treated as an unreliable basis for conviction
and punishment. That reluctance to punish on the basis of accomplice testimony is readily
apparent in every capital case decided since Furman.
Our research has determined that, since Virginia reinstituted capital punishment
following Furman, death has been recommended by juries or handed out by judges as
punishment for 72 men.” We have studied the evidence in all 72 cases. Appendix A
(Summary of the Evidence In Post-Furman Death Cases in Virginia) details the evidence of
guilt in those cases. Our study demonstrates that, with the exception of Herbert, the kind of
arene mounted against Herbert has never satisfied the sentencing jury or judge that death is
appropriate. In all other cases, the death sentence has been anchored on a confession, on
physical evidence, or on non-accomplice eyewitness testimony. In 54 of those 72 cases, the
2 Of these 72, 13 have been executed and 47 reside on death row. Two men died while on death row. Ten
men have obtained relief from their sentences:
qd) One man, Giarratano, had his sentence commuted to life imprisonment;
(2) In two cases, Rohauer and McClark, the sentencing judges rejected the juries’
recommendations of death and imposed life imprisonment;
(3) Two men, Cheng and Rogers, had their convictions reversed for insufficient
evidence and were retried for first degree murder;
(4) The other five, Johnson, Clark, Martin, Patterson, and Frye, received life
sentences or less through some avenue of legal relief.
46
penalty has been based on at least two of those categories of evidence, and for 13 of the
remaining 18 that depend on only one category, that category was a confession or guilty plea.
In 32 cases, the defendant confessed or pled guilty. In 15 others, the defendant admitted
involvement in the crime while denying that he was the triggerman or intended to kill anyone.
Thus in 47 cases, the verdict of guilty was based in whole or in part on the defendant's own
admission of complicity. In no fewer than 42 cases, physical evidence established the
defendant's guilt. In 49 cases, eyewitnesses who were not accomplices linked the defendant to
the crime. Accomplice testimony was used in only 16 cases, but in fifteen of those cases, the
accomplice testimony was corroborated by the defendant's confession or inculpatory
statements, by physical evidence, or by non-accomplice eyewitness testimony. Herbert's case
is unique in that the accomplice testimony was not corroborated by any reliable evidence.
As we have explained above, none of the evidence in Herbert's case fits within these
categories. Herbert did not confess to this crime; far from it, he staunchly denied his guilt, as
he does to this day. No physical evidence linked him to the crime; Henrico County Police
Detective Priddy admitted that no such evidence existed. Neither Burwell's fingerprints nor
fibers from his clothes were found in Herbert's car. No clothing of Herbert's contained
Burwell's telltale blood. The Commonwealth never found one witness, aside from its trio of
felons, to corroborate even the smallest detail of Winfield's, Cook's, and Green's testimony.
Herbert has not figured in the testimony of any non-accomplice from whom the
Commonwealth might have wanted corroboration. Indeed, lead investigator Detective
O'Keefe admitted in the trial of Jeanette Green that the police never found a single citizen who
could corroborate any aspect of the accomplices’ story. Exh. 20. This has left the case
47
against Herbert dependent entirely on the testimony of Winfield, Cook, and Green. But these
felons offer so many divergent accounts of their stories that they undermine, rather than
bolster, their own testimony.
The Commonwealth thus met the need for certainty and reliability with the persistent,
but clumsy, lies of Betty Winfield and Dap Cook. Our system of justice must be expected to
prevent the execution of a person solely on the basis of accusations from the least trustworthy
among us. Herbert's case -- in which the Commonwealth demands the most deadly
punishment on the most doubtful proof -- exposes a hole in our system of justice through
which no one should be permitted to fall.
So far as we can tell, no one has been permitted to fall through this hole in the past.
Virginia's governors have stood vigilant guard against execution based solely on the testimony
of unreliable witnesses. Governor William Hodges Mann commuted the sentences of Eugene
Dorsey, Calvin Johnson, and Richard Pines because the accomplice who testified against them
had "proven himself to be unworthy of credit." Exh. 34. (Governors' List of Pardons,
Commutations, etc. and Reasons Therefor, March 4, 1912). Governor Mann explained the
necessity for clemency in this way:
[The accomplice Smith] was a confessed perjurer, and the judge in sentencing
him declared that he was a perjurer, and no human being can tell whether he
told the truth first or last, and this is the condition which confronts my
conscience and involves the lives of three men. If all these facts had been
before the juries trying the cases I would have less difficulty in reaching a
conclusion, but they were not, and after the most careful thought I am in such a
frame of mind that, while I do not think the prisoners entitled to pardon, I do
not think it just to them, who are poor negroes, or to the Commonwealth, which
only desires to punish those certainly guilty, to permit them to be electrocuted
and thus put correction of any mistakes which may have been made out of the
48
power of the State if the mystery which now surrounds the murder of Schultz
shall ever be cleared up.
Id. The same motivations and concerns, plus the fact that the witnesses against him were
intoxicated, compelled Governor A. J. Montague to commute the death sentence of William
O'Boyle.
Herbert's case is no different than these four. As we explain above, the three
accomplices did not agree on the particulars at the time of trial, and they do not now.
Winfield is a confessed perjurer, and Cook and Green can be demonstrated to be perjurers.
All three admitted that they were high on heroin or Preludin at the time of the crime. Finally,
all had criminal records that, as a Petersburg detective put it, "could be used for a stepladder."
Doubt as to the guilt of the defendant or the justness of his sentence, such as exists
here, has been a recurrent reason given by governors for commutation. Doubt as to the
justness of the sentence, because of disparity of sentences between the condemned and his
accomplices, because of mandatory sentencing requirements, or for some other reason, has
been cited by governors frequently as the basis for commutation. As many as 23 men have
had their sentences commuted because there was doubt as to their guilt of a capital crime. In
four of those cases, the governor specifically cited the unreliability of the witnesses against the
defendant as the source of his doubt. Thus, while Herbert is unique among current death row
inmates in that none of the evidence against him comes from reliable sources, he falls into a
familiar pattern among those defendants whose sentences have been commuted. Doubt defines
that pattern. The great doubt, risk, and uncertainty that shadow a death sentence based on
evidence from witnesses such Winfield and Cook, and on nothing else, has compelled past
49
governors to exercise their commutation powers. This same consideration compels
commutation of Herbert's sentence.
MI. © CONCLUSION
No appellate court has examined the facts of this case as they have developed over the
years or has reconsidered the incredibly fragile threads of testimony that link Herbert to this
crime and support his sentence. Procedures and regulations bar courts from acting on, or even
considering, these facts:
e that the jury's conclusion that Herbert deserved the death penalty
was based on a 1966 crime that Herbert did not commit;
e that no physical evidence or reliable eyewitness testimony
whatever linked Herbert to the Burwell murder;
° that substantial evidence pointed instead to the guilt of Jackson;
e that the case against Herbert consisted entirely of the testimony
of practiced liars and felons who had everything to gain and
nothing to lose from pointing the finger at an innocent man;
e that startling inconsistencies in those accomplices’ testimony
remained unexplained and unexplainable; and
e that since capital punishment was reinstituted, the Commonwealth
has never asked for a man's life based only on evidence from
self-serving accomplices like Winfield and Cook.
Justice can be hard to obtain in courts hobbled by procedural rules designed to achieve
efficiency and finality. Consequently, democracies grant to a single man the power to cut
through rules and regulations and dispense final justice. The Governor of Virginia is that
man. For the many reasons set forth in this petition, we ask the Governor to do justice for
50
Herbert Bassette and the Commonwealth by preventing his execution when doubts surround
his conviction and sentence -- doubts that demand Herbert Bassette's deliverance from death.
51
Respectfully submitted,
Herbert Russell Bassette
No. 89088
Greensville Correctional Center
901 Corrections Way
Jarratt, Virginia 23870
Douglas W. Davis
Patricia M. Schwarzschild
William H. Wright, Jr.
Robert J. Stoney
Paul D. Anders
Cynthia S. Cecil
HUNTON & WILLIAMS
Riverfront Plaza - East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
(804) 788-8200
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