PETITION FOR EXECUTIVE CLEMENCY OF
JOSEPH JOHN SAVINO
INTRODUCTION
Joseph John Savino was convicted and sentenced to death for the killing
of his lover, a murder which was the culmination of controlling and abusive
behavior by his domestic > partner. Savino confessed on the day of his arrest
and pled guilty to the capital murder charge with no promise as to his sen-
tence. He was sentenced to death on the basis of future dangerousness
alone. Savino was sentenced to death based on inaccurate information
the robbery/murder charged by the Commonwealth -- the offense here merits
clemency and the imposition of a life sentence.
THE CASE IN THE COURTS
Petitioner was indicted for capital murder on December 2, 1988, he pled
guilty on April 24, 1989, and he was sentenced to death on July 20, 1989. His
conviction and ‘sentence were affirmed by the Virginia Supreme Court. Savino
y. Commonwealth, 391 S.E.2d 276 (Va.), cert. denied, 498 U.S. 882 (1990).
Mr. Savino filed a habeas corpus petition in the trial court, which was
denied on June 5, 1992, after an evidentiary hearing. Savino sought to appeal
to the Virginia Supreme Court, which refused to grant the appeal. Savino then
filed his petition for writ of habeas corpus in federal court. The district court
granted appellee's motion to dismiss. Savino filed a motion pursuant to Rule
59(e), F.R.C.P., the district court altered its opinion and denied the motion, and
Savino was granted permission to appeal. The Circuit Court affirmed on April
30, 1996.
Savino filed a petition for writ of certiorari with the United States Su-
preme Court, and that petition is now pending. Savino v. Garraghty, No. 96-
5164 (U.S. filed July 15, 1996).
What about the successor???
GROUNDS FOR CLEMENCY
Joe Savino was sentenced to death on the basis of inaccurate informa-
tion regarding the circumstances of Tom McWaters' death. Two important
witnesses to these circumstances, the Reverend Richard Boyce (who testified
in a limited fashion at sentencing) and G.C. Martin (Joe Savino's Parole
Officer, who prepared the pre-sentence investigation report for the judge) have
now provided important new evidence regarding these circumstances, evi-
dence which was not provided before because of its supposed sensitive
nature. The new evidence serves to eliminate the sole aggravating circum-
stance found by the sentencer ("future dangerousness") and provides signifi-
cant new mitigating evidence.
This new evidence reveals that Joe and Tom were involved in a homo-
sexual relationship, that Tom was in control of that relationship, and that Tom
was jealous of, abused, and threatened Joe. Tom was not, as portrayed at
sentencing, a caring and giving person who offered down-on-his-luck Joe a
home and security, but a person who took advantage of Joe sexually by
threatening to send him to prison unless Joe "performed."' While the newly
revealed circumstances in toto do not completely excuse Joe's actions, they
nevertheless cast his degree of culpability in an entirely different light and
reveal that it is Joe’s sexual orientation, rather than his conduct, which placed
him on death row.
This new information did not come to light sooner for two reasons. First,
Reverend Richard Boyce did not testify at trial to these circumstances because
he was precluded from doing so by Virginia law. Second, the community
where this offense occurred is a small one which does not openly discuss, but
instead condemns and negatively stereotypes, male homosexual relationships.
It is only because Mr. Savino is facing the imminent and real threat of execu-
tion that some are now willing to admit the seamy side of Tom McWaters.
THE RELATIONSHIP AND THE CRIME
Savino and his lover, Tom McWaters, first met in New York in 1980 while
Savino was on parole. Savino was 20 and McWaters was 53. Savino was
returned to prison in 1982 and remained there for six years. During that time,
McWaters visited with and telephoned Savino in the prison, sent him numerous
letters, and gave him money. Savino v. Commonwealth, 391 S.E.2d at 277-78.
Although.they were not yet lovers, McWaters pressed Savino to live with him
‘He raped Joe, in other words.
when he was released. While Savino was in prison, McWaters moved to
Bedford County, Virginia. They exchanged many letters, which reflected their
relationship as lovers. McWaters detailed a vision of their future relationship
as one of sharing and domesticity, including joint ownership of the house and
farm McWaters had purchased for them. The letters from McWaters to Savino
were like those between fiancees. In February, 1988, Savino moved to the
farm upon his release from prison, and he and McWaters lived together as
lovers. 391 S.E.2d at 278. Within this domestic partnership, Savino had the
authority to sign McWaters' checks and regularly used McWaters' car. On
February 29, 1989, Savino and McWaters quarrelled over Savino's drug use
and cashing McWaters' checks to purchase drugs. McWaters demanded sex,
Savino refused, and McWaters announced he was through with Savino.
Shortly thereafter, Savino bludgeoned McWaters' skull with a hammer as he
slept and then stabbed him several times when it appeared he was still breath-
ing. Savino left the house, returning later that evening to remove some of his
possessions and some property from the house.
A CASE ABOUT DOMESTIC VIOLENCE
Reverend Boyce, who was Tom McWaters' minister, testified at
trial, but the Court would not allow him to testify regarding
what Tom McWaters had said to him. The Court ruled that it was
hearsay and inadmissible.? Boyce knew first-hand of the
*The Court ruled that "I would not in any event allow any
statements made by Mr. McWaters to be disclosed." R. 628.
relationship (and its dynamics) between Joe and Tom, but was
foreclosed from disclosing the following pertinent evidence:
I am Reverend Richard Boyce of the First Presbyterian
Church in Belmont, North Carolina. I was formerly at
the Presbyterian Church in Bedford, Virginia. During
my tenure there, I knew Thomas McWaters and Joseph
Savino -- Tom as a member, and Joe as a visitor, in our
church.
Based upon my knowledge of the relationship between Tom
and Joe, Tom's death was not under circumstances which
justify a capital conviction. I do not now -- and
never did -- believe the death penalty was the appro-
priate sentence in this case.
While Tom and Joe were living on the farm in Bedford, I
was repeatedly called out by Tom to offer guidance and
counsel in their relationship. I would describe their
relationship as deeply involved, intense and volatile.
It was a complex relationship that had lasted over many
years and many varied circumstances.
While Tom did not share with me in explicit terms his
sexual relationship with Joe, I certainly perceived the
situation as being a domestic one, and treated it as
such.
Tom sought my advice regarding his relationship with
Joe several times. He expressed to me that he feared
the relationship was not going the way he believed it
should be going. Tom also said that his efforts to
watch over Joe and direct him were simply driving Joe
further and further away. Tom could be an extremely
dominating and determined man, and he knew this about
himself. He had tremendous difficulty controlling
these qualities, especially when it came to Joe.
I cannot fathom how this case was not treated as a
classic case of domestic violence. If this had been a
man and his wife, I have no doubt that the death penal-~
ty would not be an issue now. Knowing the two of them
as I did, it is patently absurd to me that this was a
drug-related homicide in the course of a robbery. This
was yet another one of Joe and Tom's many similar blow-
ups that tragically was not resolved before it became
violent.
Although I was under the impression that this case was
going to be presented and defended as a domestic
violence case, it seems to me that this was never
honestly addressed or presented by the Commonwealth or
defense counsel. The presentation of Tom McWaters as
solely a kind, gentle, good Samaritan who gave without
any thought of receiving is inaccurate, because Tom was
very controlling and domineering with Joe. And the
presentation of Joseph Savino as nothing more than a
drug-taking ex-con who abused the kindnesses of Mr.
McWaters is equally unfair and inaccurate.
See Attachment 1, hereto, Affidavit of Reverend Richard Boyce
(emphasis added) .?
G.C. Martin, Joe Savino's Parole Officer who prepared for
the sentencing court a pre-sentence report, now states as
follows:
I was Joseph Savino's parole officer in Bedford,
Virginia from February of 1988 until September of 1989
when the case was close,although my supervision ended
on November 30, 1988.
Joe's parole was successfully transferred from New York
to Virginia primarily because of the lobbying efforts
of Thomas McWaters. As early as 1986, I was contacted
by Mr. McWaters, who was arranging to have Joe paroled
to him upon release. Mr. McWaters was never truthful
with me regarding his reasons for seeking to have Joe
paroled to him, nor was he truthful about his
intentions regarding the home and job situation that he
would be providing for Joe. McWaters set in motion the
chain of events that resulted in his own death.
I always suspected that there was a sexual relationship
between Tom McWaters and Joe Savino. When I received
the first letter regarding a possible parole transfer
for Joe from New York to Virginia, I went out to
*Dr. Centor, who testified for the Commonwealth at
sentencing, was offered the opportunity to consider Reverend
- Boyce's-affidavit to determine whether it would affect the
opinion Centor gave at trial regarding Petitioner's "future
dangerousness," and Centor stated that no matter what he was
shown he would not change his sentencing testimony. See
Attachment 5, hereto, Affidavit of Deirdre M. Enright.
Balmoor, the residence on Route 43, to meet Mr.
McWaters and evaluate the offer. At that time, Mr.
McWaters made a remark that I thought was strange for
someone who claimed to be offering simply room and
board to a parolee. He picked up a framed photo of
Joseph wearing only shorts and a tank top and asked me
if Joe wasn't a good looking kid.
Initially, all seemed to go well between Joe and Tom
out at Balmoor. Joe seemed very happy and animated
about living in Bedford, farming and taking care of the
animals. I talked casually with Tom as well, and he
seemed happy with Joe too. As time went on, though,
Joe became less and less content with Tom and Tom
became more jealous and possessive of Joe.
Joe was completely dependent on McWaters for everything
-- food, income, shelter and security. For instance,
Tom McWaters' letter offering a home and a job to Joe
stated that Joe would be paid $80.00 a week. Joe did
. not actually wind up being paid this amount while he
worked for McWaters, though. While Mr. McWaters would
give Joe gifts, and sometimes even extravagant gifts --
i.e., a car, a horse, a dog -- Joe had no steady income
to speak of as long as he only worked with McWaters on
that farm which was what McWaters clearly was
demanding.
I knew from the beginning that the farm couldn't
sustain either Joe or Tom, much less both of them. Joe
wanted very much to get work off the farm, and I
considered it a measure of his successful parole that
he was trying to branch out and get off the farm by
getting a job off the farm and getting active in
Roanoke. Tom, on the other hand, was clearly
distressed by Joe's increasing freedom. Tom contacted
me directly in an effort to enlist my assistance in
imposing a curfew on Joe -- which I told him IT could
not, and would not, impose. I had to remind him that
Joe was an adult, and Roanoke was a place Joe was
allowed to go to socialize. This disturbed McWaters,
and he continued to try to control Joe's behavior, and
to try to use me to control Joe as well.
I did not ask Mr. McWaters whether or not his
relationship with Joe was sexual because I believed
that the information was not relevant to my job as his
parole officer. As my relationship with Joe and Tom
progressed, I became certain that their relationship
was not that of an employer to an employee and that it
was also more than a friendship. I still did not
inquire about it. I believe I was wrong in taking this
approach because had I_ known the true nature of their
relationship, and the depth of their problems, I would
have been able to intervene in some way, to help Joe
get out of the relationship.
As my notes on Joe's probation reflect, both Joe and
Tom did discuss with me the arguments that they were
had. Joe was trapped and smothered by Tom's demands
and each time there were problems I spoke to them about
the situation. There were also many times when I spoke
to Tom alone and asked him how things were going. Each
time he insisted either that there was no problem, or
that the problems were minor and that he could handle
things. One time, I recall that Tom said something to
the effect that Joe just liked to talk a lot of trash,
but he could handle him fine. One thing was clear: Tom
didn't want Joey to leave and he didn't need outside
help unless it was of the kind that would help him to
isolate Joe and keep him on the farm.
Joe and Tom did have a fight that was serious enough
that Joe called me and said he was leaving and going
back to New York. I told him that I could arrange for
a parole transfer and he could go as soon as he wanted.
. At that point, I wasn't glad to see Joe leave because
he was a problem, because he wasn't a problem at all. I
was glad, though, because I thought he needed to branch
out more, and I didn't see how he could continue to
exist on that farm.
Until McWaters' death, Joe was practically what I would
call_an ideal parolee. He came for all his scheduled
meetings, and he came often just to say hi and check
in. He talked freely about many subjects and seemed
open and friendly and eager to do well. He had a
tremendous need for approval and love. I_did not
inguire into areas I suspected were potential problems
=- and had I to do it over today, I would. Everyone in
our office liked Joe a lot. He even brought in
visiting friends to meet the office. In these ways, he
was an unusual -- and promising -- parolee.
I do not believe the death penalty in this case is
justified. While this case has many dynamics, it is
primarily domestic in nature between two consenting
adults. JI_have been a Probation and Parole Officer in
excess of eighteen years and, as part of my job, I must
recognize domestic abuse situations and distinquish
true domestic abuse cases from false ones. But for the
gender of the lovers, I view this as a classic abuse
case, which was allowed to continue until it became
uncontrollable. I see Joe Savino as an individual who
was using the relationship for financial gain and the
victim Tom McWaters, who had complete control of the
finances, controlled Mr. Savino to meet his sexual and
emotional needs.
Bedford is a small Virginia community with conservative
values and traditional views of marriage and sexual
relationships. Male homosexual relationships are not
accepted or even acknowledged here.
I have never believed that Joseph Savino's killing of
Tom McWaters was motivated by an intent or a desire to
rob Tom McWaters. I believe that Tom McWater's death
was the product of Tom and Joe's stormy relationship, a
relationship which Tom McWaters in large part
controlled.
Until Deirdre Enright approached me and asked me, I_had
not told all that I knew or suspected about Tom and his
relationship with Joe. I had not told it because in
this community we did not speak openly about homosexual
relationships between men. When Ms. Enright told me
that Joe Savino will actually be executed Wednesday,
July 17, 1996, for Tom's killing, I shared with her all
the information I could recall about the case.
See Attachment 2, hereto, Affidavit of G.C. Martin (emphasis
added) .
Dr. Henry O. Gwaltney, Jr., a former employee of Central
State Hospital (and colleague of the Commonwealth's expert at
sentencing, Dr. Centor), would testify as follows: :
I am a clinical psychologist specializing in forensic
psychology. I received my doctorate in psychology from
the University of Missouri in 1959, and I am licensed
to practice clinical psychology in the state of
Virginia. I ama member of the American Psychological
Association, and I am a former. member of the Virginia
Psychological Association. I am a member and past-
president of the Virginia Academy of Clinical
Psychologists. From 1976 to 1995.I was employed as a
forensic clinical psychologist at Central State
Hospital. I retired from Central State a year ago, and
now practice clinical psychology as a private
practitioner.
For over twenty years, I have conducted forensic
examinations in Virginia, and have provided in-court
testimony regarding issues of competency, sanity and
future dangerousness. I have performed evaluations and
have appeared in more than 30 capital murder trials in
Virginia. I have also consulted in criminal post-
conviction cases on issues of future dangerousness and
competency to waive appellate rights prior to
execution. I have assisted both prosecution and
defense attorneys in these matters.
In June, 1990, I was appointed by Judge Sweeney of the
Bedford County Circuit Court to evaluate Joseph Savino
for competency to waive his remaining appeals. I met
with Mr. Savino and reviewed materials provided by the
Attorney General's Office, including the direct appeal
opinion from Mr. Savino's case, the pre-trial report of
defense psychiatrist Lisa Hovermale, and the pre-trial
report of Commonwealth psychologist Arthur Centor. I
also spoke to attorneys from the Attorney General's
Office and to an attorney for Mr. Savino.
Although I believed at the time of my evaluation that
Mr. Savino was competent to waive his appeals, I was
deeply disturbed, based upon Mr. Savino's psychological
make-up and the facts of his case, that Mr. Savino had
been charged with capital murder in what was clearly a
case of domestic abuse. It is very clear from evidence
introduced at trial and observations of witnesses then
and now that Tom McWaters and Joseph Savino were a
couple whose domestic arguments escalated into a
violent situation that was characteristic of neither
party at that point in time. The facts of the case
showed that Mr. Savino and Mr. McWaters had been
involved in a homosexual relationship and Mr. Savino
was being controlled by Mr. McWaters, who was jealous
and manipulative. In my professional opinion, this
killing was not motivated by a desire to rob but by
heat of passion.
I disagree with the opinion of my former colleague, Dr.
Centor, that Mr. Savino would most certainly be
dangerous in the future if incarcerated. I have
reviewed all of the materials reviewed by Dr. Centor,
including Mr. Savino's statements, a Bedford Sheriff's
Department report, the medical examiner's report, the
report of defense psychiatrist Dr. Lisa Hovermale, an
FBI report of Mr. Savino's prior offenses, and arrest
warrants for the forgery and uttering offenses. I have
also reviewed a transcript of Dr. Centor's testimony at
Mr. Savino's trial. Mr. Savino's criminal record
while lengthy, indicates that Mr. Savino apparently
engaged in no overt criminal acts of physical violence
before the incident which resulted in Mr. McWaters'
death. It is my expert opinion that Mr. Savino would
be highly unlikely to commit criminal acts of violence
in the future, unless he was in a controlling
relationship similar to his relationship with Mr.
McWaters. I believe that while incarcerated, Mr.
Savino poses a very low risk of future danger. It’is
clear, based on Mr. Savino's record, that he has
adapted extremely well to life in the penitentiary and
has apparently been a danger to no one.
See Attachment 3, hereto, Affidavit of Dr. Henry O. Gwaltney, Jr.
(emphasis added).
Finally, William Sibilia, who appeared as a witness at the
plea proceeding, would testify as follows:
I live in the Squire Village apartment complex at 40
Cedar Lane in New Windsor, New York.
I first met Joseph Savino when we were both
incarcerated at Valhalla Westchester County jail in
Valhalla, New York. I had pled guilty to arson, was
sentenced to 5 to 15 years, and ending up serving six
years. I was released from prison in 1988, just before
I came down to visit Joe Savino and Tom McWaters. I
spent almost two years in prison, and for a year, Joey
and I were there together. We were both trustees and
shared a cell on 1G. During that time, we were very
close friends. After that, I was transferred to
several different prisons and Joey went to the Bronx
house, to Downstate Correctional, and then to 7
Arthurkill, but Joey and I maintained contact by mail.
I met Tom McWaters at Valhalla, too, since he would
come visit Joey and sometimes I'd have a visit at the
same time and we could all talk. He also wrote me
letters occasionally. Joey and Tom had been planning
how they would buy a farm somewhere in the south and
live there and take care of animals. Even after Joey
and I got split up and sent to different prisons, Joey
wrote me letters that described the farm he and Tom had
chosen. One time he even sent me a picture of their
place in Bedford. He and Tom were really excited to
have the chance to live in a place like that -- a nice
house, lots of land, and animals.
Tom didn't want other people to know that he was gay.
‘I don't recall Joey ever telling me why.
There was another young boy who spent a lot of time at
Tom's farm named David. Joey had told me in letters
while we were in prison that Tom had a young boy on the
farm who did a lot of work. Joey worried that Tom was
sexually abusing the boy. Tom talked a lot about the
boy in his letters, and said things that made Joey
think that Tom was having sex with him. Joey was not a
pedophile, and he really hated stuff like that because
he had been sexually abused a lot when he was a child.
Joey wasn't sure what was going on, because he also
thought it was possible that Tom just talked about
David a lot to make Joey jealous and to make sure Joey
still cared about him. When Joey actually got to
Balmoor, David told him that Tom had sex with him and
he wrote me about it. It made him sad and angry, and
he tried to protect David from further advances by Tom.
I know Tom gave David pretty expensive presents, like
the white Blazer David was driving around when I
visited. Tom touched David a lot. It's my opinion
that Tom was having a sexual relationship with him.
While we were in prison, though, Tom told Joe that he
was messing around with a young boy who was living on
his farm. Joe wrote that to me in a letter, and I
wrote him back about it. I think it bothered Joe that
Tom would do something like that with a kid, but he
wasn't sure whether it was true, or just something Tom
was doing to make him jealous. That was the type of
thing Tom would do to Joe, I think in the hope that
this would make him mad or jealous or just show he
cared.
Things seemed to be going pretty well for them when
Joey first got to the farm -- Joe truly loved the farm
and the animals and Tom. The only things Joey seemed
bothered by were Tom's possessiveness and sometimes,
the sex. But by the time I got there to visit, things
had obviously gotten out of hand. Tom was so jealous
of Joey that he followed him around every minute.
An example of the way Tom was behaving was that one day
when I was there, Tom asked Joe to return these videos
we had rented. Joe said he'd be gone ten minutes and
left to return them. A few minutes after he was gone,
Tom started wandering around, asking if Joe was coming
back down the drive yet and wondering how long it would
be before he'd come back. I told Tom to take it easy,
that Joey would be right back like he said. Then Tom
started walking in and out of the room, pacing around
and looking out the windows. He kept asking why he was
gone so long. He literally was making himself sick
over the whole thing. Then when Joey came back, Tom
started working him over, asking where he'd been, what
was he doing, how come it took so long. That was
typical of the way he would treat Joe while I was
there.
Tom and Joe didn't admit to anyone that he and Joey
were lovers. I think they were both private people,
although Joey didn't really mind people knowing he was
bisexual before. I thought it might also have been
that Tom didn't think they'd be accepted in Bedford if
they were open about their true relationship. But Tom
was also telling people that Joey was just some poor
ex-convict that he was attempting to save. Joey was
humiliated by this type of lie, but it happened all the
time. It's surprising to me that Joey didn't just come
out and tell people the truth about his and Tom's
relationship.
I think that part of Tom's anger and suspicion of Joe
when I was around had to do with me. Although Tom had
invited me to come, it was clear he didn't want me
there when I got there. He was very threatened by my
relationship with Joey, because he knew that Joey and I
were extremely close. I think Tom was afraid that Joey
and I would be sneaking around, trying to sleep
together. He also knew that I could talk to Joey like
no one else could, and he and Joe had gotten to the
point where he tried to start an argument with Joe all
the time. So I think my presence made everything
escalate -- Tom was getting harder on Joe and more
possessive, and Joe was feeling more trapped than ever
because we couldn't do anything together without Tom
losing it.
Tom did something to Joey the week I there that was
both stupid and unforgivable. Joey had cashed some of
Tom's checks, which he had permission to do. But Tom
got mad about some of them and started in on Joe in
front of me and Kathy and David Goff, telling Joey he
was going to tell his parole officer and send him right
back to prison. He wasn't letting Joey explain
anything and he didn't want to talk about it. You have
to have served time to know what a frightening thing it
is to be threatened with prison.
The night before I left to come back to New York, Kathy
and I planned to make a big dinner for everybody -- Tom
McWaters, David Goff, the young boy who was always
hanging around with Tom at the farm, Joey, myself and
Kathy. We had made Fettucine Alfredo, Italian bread,
salad and wine. I think we might have bought a cake
for dessert. We bought firecrackers -- Roman Candles
and stuff like that -- to set off later after dinner.
Joey showed me around town and we bought everything for
dinner. Tom made it obvious in the beginning that he
didn't want me there, and he didn't like me and Joey
going out and doing things like this together. During
dinner, Tom started in on Joey about the checks. Joey
kept trying to explain to Tom about the checks, but Tom
wouldn't listen to anything he said and just kept
yelling at him in front of us and treating Joey like a
child. Joey finally stood up and said that he was
going to leave. Tom said that if he did, he'd call his
parole officer and send him back to jail and he could
think about it all for a long time there. Joey told
him "Listen, Tom, there's no need for all this-" but
Tom kept at him. Joey just let him yell and yell, and
then he ate his dinner and got up and left.
Later that evening Joey called in from wherever he was
to talk to Tom. I don't know what they said to each
other, but Tom came and asked me to talk to Joe too, to
find out what was going on with him and to try and get
Joey to come home. That's when Joey and I agreed to
meet later at the Lucky Seven store and talk it over.
Tom then told me to go after Joey, to find him and talk
to him and bring him back. This seemed weird, since he
had just told him that he was going to jail minutes
before. When I came back from talking to Joey, I told
Tom that things hadn't really gone that well with Joe,
and that he didn't seem like he was going to come back.
I said that he was really afraid that Tom was going to
call his parole officer and put him in jail and I told
him Joe just wanted his clothes and wanted to leave.
Then Tom said, "Well, go tell him that's not going to
happen, I'm not going to call his parole officer." I
was totally shocked, because then I realized that Tom
wasn't really serious about the parole violation thing,
he was just doing it to mess with Joey's head and
control him. I told Tom that I didn't think Joey would
come back to the house, and then he seemed really ina
panic about that.
Maybe Tom wasn't serious about threatening Joey with
more jail time, but Joey sure took it that way. Every
talk we had after that, Joey just kept saying over and
over that he couldn't go back to jail, he just couldn't
go back. I told Joey that he should just get in the
car and come back to New York and live with me at my
dad's house -- that we could leave right then. But
Joey didn't believe that, and said that he knew Tom
better than me, and he knew that Tom would follow him
no matter where he went. Joey told me that he was
freaking out about how everything was falling apart.
He said it was scary how Tom was trying to control
every move he made and he was finding it more and more
difficult to tolerate having sex with him, even though
he knew he had to have sex with Tom to stay out of
jail. Joey admitted that he started using coke, too,
but he thought he had it under control. He kept saying
over and over that he couldn't go back to jail and he
didn't know what to do.
One of the last nights I was visiting, I was talking to
Joey in the parking lot of a little convenience store
in Bedford, because Tom had asked me to. At first I
thought I was going to get him to come back to Balmoor
and get his stuff and leave. We got to the driveway of
the farm, but Joey got out of the car at the end of the
driveway like he was just paralyzed and wouldn't go.
He just couldn't go back in the house, period. He had
become so paranoid that he thought that I might be part
of Tom's plot to trap him and that I was leading him
back to the house where his parole officer and the
police would be waiting to take him in. While we were
talking, Joey had told me how he wanted to get work off
of the farm, so that he could be more self-supporting,
but Tom kept trying to make that impossible by
insisting that Joey still do a lot of work around the
farm. He would also tell Joey that if he didn't have
sex with him, he would make up things and tell his
parole officer that he was violating his parole. Joey
was losing his respect for Tom, and was falling out of
love. with him but he felt trapped in his situation.
I tried to talk to Tom the next night after dinner
about the situation between him and Joe. I had to wait
until then because Tom had been working that day. Tom
was getting ready to go to the symphony or opera with
this friend of his, Paula, who wrote a book called
Patchwork Quilt. Tom wanted me to come upstairs and
talk to him, he didn't want to talk to me downstairs,
so I went up. My friend Kathy was downstairs at the
time, watching tapes we had rented on TV. While I was
standing there, trying to talk to him about the checks
and this fight with Joey, Tom just took off his pants
and stood in front of me, smiling a little bit and
asked me what was going on and I realized he was asking
for sex. He was just standing still by his closet,
naked, staring at me and smiling. I was shocked. I
was trying to handle what I thought was a serious
problem and he was trying to come on to me. Then I
realized he really didn't care about the checks, that
he only talked about the checks when Joey was around
‘because it was a way to control Joey. I kept trying to
talk to him about the checks, but he didn't care, all
he wanted was sex. It was a little scary, to watch
him, to tell the truth.
Finally, I said listen, if there's a problem, Joey
would really like to speak to you and I told him that I
could get Joey back to the house like he had asked and
have all of us sit down and talk about this situation.
I told him Joey was worried sick that Tom was going to
call his parole officer and set him up to go back to
jail. Tom was still annoyed I wouldn't have sex with
him, and he just started putting his clothes back on
and said he didn't want to.talk about it and he really
didn't care.
When Joey didn't come back the next day, I told Tom
that Kathy and I felt awkward, and that we were going
to leave. I told him I thought he should talk to Joey
and settle things. Then all of a sudden he was back to
where we'd been the day before -- he wanted me to talk
to Joey and get him back.
Tom called me after I returned to New York to tell me
that Joey had gone to jail because of the checks, and
because he'd had a car accident. But he told me not to
worry, because he was going to get together the money
to bail Joey out. I couldn't believe this, after he'd
spent so much time telling Joey this was what he was
exactly what he was going to do to him.
I think Joey called me twice the night it happened from
Balmoor. One time, it was early in the evening, and he
said things were going bad, he was really worried and
stressed out. The next time he called he was like
breaking down, saying that Tom wanted to have sex with
him, and he kept pushing him to do that. Joey didn't
want to have sex, but he kept saying if he didn't, he'd
have to go back to jail. Joey told me that Tom told
him if Joey would have sex with him, he'd make good on
the checks.
Joey called again two or three hours later and he was
somewhere else, in that motel or something. He was
just gibbering about Tom being dead. He was crying and
babbling, and he kept saying how scared he was. He
said goodbye to me, and said that it had been good
knowing me, and that he loved me, but it was all over.
I didn't know what to do. No one ever asked me whether
there were any phone calls other than the two on the
Balmoor phone bill or I would have told them.
I then talked to Joey for a whole day, maybe even two
days after Tom was dead. We kept calling each other
because I was trying to get him out of there. I talked
to him at a hotel, he gave me a number to call him at
and I would ask the front desk for Room 104 and they
would give me Joe's room.
The next thing I know I get a subpoena from the state.
The police came to my father's house at 20 Estate
Boulevard. They said they were BCI homicide
detectives, and they came in plain clothes. We thought
they were there to arrest me. My girlfriend Kathy
Gillen and I were taken down to the police station in
Newburgh and we both had to give statements. I was
told that the Virginia authorities were interested in
my involvement in the murder, and that, if I did not
cooperate, I might be charged in connection with the
murder. I was also told that my parole status would be
jeopardized’ if I did not cooperate.
I came to Bedford for the trial, at the insistence of
the Commonwealth. Updike, the prosecutor, came to my
room at the Best Western Motel and told me to come to
his car and talk to him. He told me what I was going
to testify to from the beginning. First off, he told
me that he knew that I had been in on planning the
murder, and maybe even doing it, and if I didn't
testify the way he wanted, I was going to be facing
charges too. He told me he didn't care about my
version of what was going on, and he didn't care what
some con from New York had to say. I told him that
Joey didn't plan to rob Tom, that he didn't need to rob
Tom, and that Joe didn't leave the house that night
with anything that wasn't his. Mr. Updike didn't care
about that.
I also told Mr. Updike that there was no way I would
testify against Joey if he was seeking the death
penalty. He assured me, loud and clear, that nobody
was seeking the death penalty in this case, it wasn't
even an issue.
The first time that I talked to Joey's lawyers, I was
too scared by what the cops had told me, how if I
didn't testify the way the prosecutor wanted me too, I
could forget my parole and go back to jail. After I
learned that the prosecutor had lied to me, and he was
really seeking the death penalty, I phoned Hugh Jones'
office and said I needed to talk to them. This was
when they'd brought me down there to testify. Hugh
Jones was Joey's attorney then. He would never come to
the phone to talk to me and he never called me back.
ee Attachment 4, hereto, Affidavit of William Sibilia.
Thus, the complete evidence that is now available casts an
entirely different light on the events that culminated in
McWaters' death. At the plea proceeding the Commonwealth
presented several witnesses including William Sabilia. Sabilia
had met Savino while both were serving sentences in the
Westchester County Jail. Sabilia also met McWaters while in
Westchester as McWaters visited Savino during the period when
Savino was incarcerated.
In his earlier testimony that he now admits was false,
Sabilia stated that he had had no indication that there were any
prior problems between Savino and McWaters. He also testified
that he had no indication that his visit to Savino provoked any
jealousy on McWaters' part.
Contrary to Sabilia's sworn testimony, McWaters was in fact
jealous of Sabilia and of his close friendship with Savino.
Sabilia and Savino were unable to do anything together without
provoking McWaters' controlling behavior. Aff. at 4 12. ;
Sabilia's observations concerning the relationship between
McWaters and Savino were independently confirmed by the Reverend
Richard Boyce who was the minister at the Presbyterian Church in
Bedford. McWaters' efforts to control Savino were also
documented by G. C. Martin.
At the sentencing hearing held on June 13, 1989, the
evidence about McWaters' and Savino's history of domestic
conflict resulting from McWaters' manipulation was not developed.
The Commonwealth preserited several witnesses to testify to
Savino's temper and offered his criminal record, which included
several of robberies in New York but no weapons offenses. Most
importantly, however, the Commonwealth's expert, Dr. Arthur
Centor, testified that Savino would likely be a future danger.
The defense presented the testimony of Dr. Lisa Hovermale
from the Institute for Law and Psychiatry at the University of
Virginia. Dr. Hovermale stated that, at the time of the killing
of Mr. McWaters, Savino was suffering from a cocaine induced
psychosis. She declined to give an opinion on future
dangerousness, stating her professional view that such
predications to be beyond the abilities of forensic science.
The presiding judge found the aggravating circumstance of
future dangerousness and sentenced Savino to death.
The prosecutor, James Updike, presented to the trial judge a
powerful portrayal of Joseph Savino as the manipulator of Tom
McWaters, of a man who used sex and the prospect of sex to entice
McWaters into a relationship with him, to send him money in
prison and, ultimately, to buy him a farm in Virginia. It
painted McWaters as the innocent victim of Savino's
manipulations. That vision was terribly distorted, however.
In reality, this relationship was about an older man,
obsessed with sex with young men generally, and with Savino in
particular. As the object of his most intense sexual obsessions,
McWaters was obsessed with the need to control Joe Savino. It
was a classic case of an emotional abuse, of the need for one
party in a relationship to control every aspect of the life of
his partner, and of the inability of the other party to identify
the solution to his problem. It is, quite frankly, a classic
case of an abusive relationship which, had it involved a
heterosexual couple, would never have resulted in a death
sentence.
During his closing argument at sentencing, the prosecutor
told the sentencing judge:
Your Honor, we know about [Savino's] prior
prostitution, how he will use that for gain. We know
that back when he went into the penitentiary in '82,
into the system, that he had this lover named Chris
that he loved, about how he knew the effects upon
somebody he lover, he terminated that relationship.
But he didn't care anything about Tom McWaters. Tom
did love him from all indications. But Joe Savino
didn't care because Joe Savino saw in Tom McWaters not
a meaningful relationship, he saw an opportunity, and
that's how he's described as being opportunistic.
Now he can see that kind of opportunity and benefit
from it. He can't see somebody trying to get him off
drugs or keep him out of crime. But that type of
opportunity, he sees at that time. And after Tom
McWaters does all of this between '80 and '82, giving
him money, giving him a job, assisting him in that
fashion, when Savino goes into the penitentiary then,
he drags Tom along in terms of emotions. He writes him
these letters which I won't read again of course. But
he writes him, and he ways things such as I'll be
getting out on parale later and we'll be together, and
he sends him the picture, and he promises the actual
nudity live in five and a half months. He's taking
advantage of this man, he's tantalizing him, he's
playing with his emotions, he's using him.
And why? Well Tom McWaters told him that he would
buy him this place in Virginia, Balmoor, a beautiful
estate as we can see from the photographs. Savino
seized on that opportunity.
Savino also wanted money from McWaters as he was
there in the penitentiary, and he got that. He wanted
his assistance in getting out of the penitentiary as
far as meeeting parole, he got all of that. In the
meantime, he'd write these love letters.
And then, when he comes out, Your Honor, and as we
get to this point where he says things are so bad, well
what is Tom McWaters doing, is he acting like a jailer?
Of course he's concerned about Joseph Savino being out
late at night. We know what he was doing at least
later on. He was running up spending weekends in
Roanoke, staying out all weekend, at times hanging out
with transvestites, participating in illegal drug use.
Tom McWaters knew what had happened in the past, he
knew Joe Savino, he knew what was going to happen, he
was concerned about him, he wanted that to stop. And
he wasn't about to go tell the probation officer, at
that point that he was using drugs, then they might
lock him up, he didn't want that either. He just
wanted Joe Savino to stay out of trouble, to stay away
from drugs and be happy.
* * *
Now, Your Honor, again he keeps talking about he
wants to be rid of Tom and somehow he just can't bring
himself to do it. He claims that Thomas McWaters
wanted to have sex with him. Well we can't hear Tom
McWaters' recollection of that or his testimony on that
issue. But accepting what Savino says in that regard,
he goes upstairs, he will not have sex with him. He
does not leave the house as he can and as he does
later, and Tom McWWaters says I'm washing my hands of
you, I'm through with you, you can rot in jail.
* * *
And besides, Thomas McWaters is ending it, he
realizes well I thought this place was mine, I thought
you bought it for me. All this silverware and all
these nice items, these luxurious items, the paintings,
the life on the estate, the animals, I thought this was
mine. Tom say's I'm through with you.
This then, is the theme of the prosecutor's argument for the
death penalty. It is this portrayal of the relationship between
Savino and McWaters -- Savino the manipulative seducer and
McWaters the loving, generous victim -- which dominates his
argument .
This argument, as we now know, was a long way from the
truth. McWaters' attempts to control and possess Savino began
many years before his murder. Joe Savino was only 21 years old
when he first became involved with McWaters in 1980. McWaters
was already in his mid- fifties. By the time Savino came to live
with him, McWaters was 63 years old. While Mr. Updike portrayed
Savino as the seducer of McWaters, dangling love and sex before
him in his letters from prison, the letters from McWaters clearly
demonstrate that he was sexually fixated with Savino. Thus,
while Mr. Updike cited to the trial judge Savino's comment
concerning his "nudity," McWaters, in January, 1986, wrote a
lengthy and graphic description of a dream he had had about a
prolonged sexual encounter with Savino, involving both anal and
oral sodomy. And even as he complained. "Have had no mail from
you in ages and was disappointed not to get a Christmas card this
year-do not understand no letters," McWaters asked Savino to
write to him "all about" the details of his sexual prowess, "so
that my dreams will get better - and I can get. ready for the big
day [Savino's release]." Nothing even remotely comparable
appears in Savino's letters to McWaters. Thus, not only was
Savino not the great seducer, as Mr. Updike portrayed him, it is
clear that McWaters' interest in Savino was not innocent
affection or love, but perverse sexual obsession. Nor was his
interest simply to make Savino "happy," as Mr. Updike claimed.
His interest was in satisfying his sexual cravings through
Savino, an obsession which was, for him, the focus of Savino's
potential release. It was ultimately that obsession -- the
demand for constant sexual gratification -- and his manipulative
use of the threat of returning him to prison, that drove Savino
to take the life of his tormentor and self-appointed jailor.
Moreover, while Mr. Updike portrayed Savino as the great
manipulator while he was in prison, enticing McWaters to help him
_gain his freedom, it was actually McWaters who, during that same
period, enticed Savino into his world of sexual obsession by
offering the prospect of that freedom.
In August, 1989, McWaters wrote to Savino about the home and
farm he had purchased for the two of them in Bedford, Virginia:
Now that we own Balmoor my thoughts are always about
you - and our being together and working together at
our house. The thoughts of being with you always and
of working on projects and planning things and of not
being alone or cold again is so exciting and maybe so
soon to be - How long ago was it we [illegible] talked
of the Va. ranch? 5 yaers maybe - seems like a
Thousand years -
While Mr. Updike told the judge that Savino was motivated
only by the money McWaters would send him in prison and the
prospect of his help in connection with parole, the fact is that
Savino often did not cater to McWaters. McWaters repeatedly
complained that he had not heard from Savino and attempted to
manipulate him with "guilt" for failing to maintain contact.
Thus, for example, in McWaters wrote to Savino as part of his
Thanksgiving greetings in 1983:
Had been in hope of phone call Sunday nite [sic] but no
such luck - Maybe you are still a bit dissappointed in
me for some reason. I hope not as I do not want you
even to be of such thoughts. But then of course you
have only one call? so why not to some other place for
word and news, etc. ok I know that I am not the only
one in your mind or heart.
In September 5, 1985, McWaters wrote:
Another thing concerns me - something is wrong between us -
I do not know what it is. I have noticed it for
sometime - you do not write much - and on our last
visit - which well may have been our last visit for a
long time . . . I was in hope that we would talk of
personal things between us - and that you would do some
thing special for the occasion - or that at least you
would have held me for a moment - maybe I expect too
much of this friendship! Maybe I read in things that
are not there, at least not there for you to me. Maybe
too much time has passed and words are just words and
that they may never be any thing else - we may never
spend any more time together in any other way than we
already have.
So, too, McWaters wrote to Savino in February, 1986:
I have worked so long and so hard with very little help
- I am tired, Joseph, and I can not get away from it -
not even for one full 24 Hr. day. I am also in a prison
- except I have to work. - Take some of hundreds of
Bills - Lawyer's fee, etc. Have the personal
responsibility for my mother and the continued home for
her to live - a guaranteed security for as long as she
lives - even if it is longer than me. You do not seem
to be interested enough to keep letters coming. Oh well
- don't worry. about it -
A review of all the evidence concerning the relationship
between Savino and McWaters underscores the injustice of a death
sentence in this case. Petitioner was sentenced to death when
others under similar circumstances would not be. Women who have
killed their abusive partners have increasingly been acquitted
or, more recently, had their sentences commuted, based upon a
"domestic violence," "spouse abuse," or "battered-women
syndrome" defense. As the newly discovered evidence indicates,
Petitioner was abused by the "victim." Petitioner was forced,
i.e., under threat of being sent to prison, to have sex with an
elderly man. This elderly man isolated the Petitioner from his
family and friends, stalked him, controlled all of the resources
the Petitioner needed to live, increasingly controlled the
Petitioner's environment, and showed Petitioner that he had
complete control over his well-being. This is a classic "spouse
abuse" scenario, as the actors close to the scene now
acknowledge. See Attachments 1* and 2.° However, it is not
* Tom also said that his efforts to watch over Joe and
direct him were simply driving Joe further and further
away. Tom could be an extremely dominating and deter-
mined man, and he knew this about himself. He had
tremendous difficulty controlling these qualities,
especially when it came to Joe.
I cannot fathom how this case was not treated
as a classic case of domestic violence. If
this had been a man and his wife, I have no
doubt that the death penalty would not be an
issue now. Knowing the two of them as I did,
it is patently absurd to me that this was a
drug-related homicide in the course of a
robbery. This was yet another one of Joe and
Tom's many similar blow-ups that tragically
was not resolved before it became violent.
5 Joe became less and less content with Tom and
Tom became more jealous and possessive of
Joe.
doe was completely dependent on McWaters for
everything -- food, income, shelter and
security.
Tom, on the other hand, was clearly
distressed by Joe's increasing freedom. Tom
contacted me directly in an effort to enlist
my assistance in imposing a curfew on Joe --
which I told him I could not, and would not,
impose. I had to remind him that Joe was an
adult, and Roanoke was a place Joe was
allowed to go to socialize. This disturbed
McWaters, and he continued to try to control
Joe's behavior, and to try to use me to
control Joe as well.
Joe was trapped and smothered by Tom's
demands, and each time there were problems I
spoke to them about the situation.
until now that the nature or the relationship has fully surfaced.
The only reason that Petitioner is scheduled for execution, when
other similarly situated persons are not even in prison, is that
he is male and was involved in a homosexual relationship.
CONCLUSION
The Governor should grant clemency given the substantial
doubt about the appropriateness of a death sentence in view of
new evidence not previously available and given the substantial
punishment imposed by a life sentence. Mr. Savino respectfully
requests that the Governor grant him clemency.
Tom didn't want Joey to leave and he didn't
need outside help unless it was of the kind
that would help him to isolate Joe and keep
him on the farm.
I do not believe the death penalty in this
case is justified. While this case has many
dynamics, it is primarily domestic in nature
between two consenting adults. I have been a
Probation and Parole Officer in excess of
eighteen years and, as part of my job, I must
recognize domestic abuse situations and
distinguish true domestic abuse cases from
false ones. But for the gender of the
lovers, I view this as a classic abuse case.
