UNDESERVING OF DEATH
FUNDAMENTAL FLAWS IN
FITZGERALD’S TRIAL
CLEMENCY PETITION OF
EDWARD BENTON FITZGERALD
T:\EMPLOYEE\1 2002\FITZ-PET.1
TABLE OF CONTENTS
Last OF EXHIBITS ¢ so wise: 6 oon tdi eee iene oo ee eg we ee ete ee ii
INNOCENCE OF DEATH .. 1... eee eet eee eee eee eee eee nee 1
A. The Historical And Logical Nature Of Clemency ..............6- 2
B. The Importance Of The Sentencing Trial ...........-000-2000. 3
DEFENSE DEFICIENCIES AT SENTENCING TRIAL ... 2.2.6.0 0 ee eee eeeee 8
A. The Strong Case For Mitigation 2.2... . 0... ee eee eee eee 11
1. Fitzgerald The Man «1... 1. cee ee ee eee 11
2. Fitzgerald’s Abuse As A Child ..........00020000005 13
3. Fitzgerald’s Long History Of Drug Abuse .............. 17
4, The Unusual Circumstances Surrounding The Crime ........ 18
DISPARATE TREATMENT OF CO-DEFENDANT .... 2.000 e et ee eeeee a+ 20
CONCLUSION: wees: i: oa 6 4 conse 8 6 6 oe wR 8 6 ee oo we ee a 6 8 Ow elie 22
i
LisT OF EXHIBITS
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I. INNOCENCE OF DEATH
This clemency petition concerns a case of innocence. Not innocence of the crime,
however, but innocence of the penalty, innocence of death. In a non-capital case, innocence
refers only to the question whether the defendant did the acts charged. But in a capital case,
the defendant faces two equally important trials, one to determine whether he did the acts
charged, and one to determine whether he ought to die for having done them. The second
determination must be made only if the first determination goes against the defendant, but
acquittal -- a finding of innocence -- is possible in either trial. Just as a defendant convicted
of the acts charged might be innocent of those charges, a defendant condemned for the acts
charged might be "innocent" of the condemnation. He ought not to die.
This clemency petition also concerns a fundamentally unfair trial. Trials are
adversary proceedings that depend on vigorous opposition to achieve a fair and reliable
result. If a defendant’s lawyer failed to put on readily available evidence of the defendant’s
innocence -- or worse, admitted the defendant’s guilt to the jury notwithstanding such
evidence -- reasonable people would agree that regardless of the outcome, the trial was
unfair, the result unreliable, and the question of innocence unresolved. The verdict in a
sentencing trial, whether life or death, is judged by the same standards of fairness. And the
failure of the defendant’s lawyer to put on readily available evidence of the defendant’s
innocence of the penalty and that lawyer’s affirmative admission to the jury of the
defendant’s guilt of the penalty is no less objectionable and violative of common notions of
fundamental fairness. Shockingly, that is exactly what happened in Edward Benton
Fitzgerald’s case. Consequently Fitzgerald’s trial provided no reliable answer to the question
whether Fitzgerald should live or die. Such a contravention of the principles of justice on
which our system of justice is based presents a compelling question of innocence -- innocence
of the death penalty.
A. The Historical And Logical Nature Of Clemency
If courts were perfect, governors never would be asked to grant clemency, for there
would be no injustices, there would be no unfair trials, there would be no mistakes. But
courts, which are no more than collections of fallible human beings, are not perfect in any
respect. Whether trial or appellate, courts make mistakes of every kind. They convict the
innocent and acquit the guilty, they condemn those undeserving of death and spare those
perhaps deserving. When the framers of Virginia’s constitution gave our governor the power
of clemency, they can only have intended that our governor stand guard against errors of any
sort that resulted in injustice.
No official standards determine when the governor should grant clemency. Recent
history in Virginia indicates, however, that only actual innocence of the crime -- or at least
the gravest doubts as to guilt -- will provide an adequate basis for clemency. There are at
least three reasons why this should not be the case. First, those innocent of the crime of
which they have been convicted seek justice, not mercy, when they ask for clemency.
Strictly speaking, clemency concerns mercy. Logic therefore prescribes that clemency
should be available for those guilty of crimes as well as those innocent.
Historically it has been available to those guilty of crimes. From 1900 through 1988,
Virginia’s governors granted clemency to 91 men and women. In no more than 11 of these
cases could it be said that the basis for clemency was doubt as to whether the condemned
man committed the crime. Innocent persons rarely should be convicted of capital crimes, so
it is by no means surprising that 80 of 91 commutations have spared persons as to whose
guilt there was no question. This simply reflects the fact that our courts make mistakes other
than convicting those who have committed no crime.
Even in the post-Furman era, governors and pardon boards across the nation have
granted clemency to persons whose guilt was unquestioned. Of the 70 commutations
reported by Professor Michael L. Radelet in Clemencies In Post-Furman Capital Cases, well
over half were for reasons other than innocence of the crime. Prominent among those
reasons were rehabilitation of the condemned, disparity in sentencing between the condemned
and his co-defendants, simple mercy, or post-conviction changes in the law that placed the
fairness of the condemned man’s sentence in doubt.
In short, clemency ought to be, has been, and is now extended in cases where
injustice has invaded the sentencing trial as well as in cases where the guilt trial went awry.
This is as it should be. Bifurcation of a capital case into two distinct trials of innocence
underscores the critical importance of the sentencing trial. That trial in fact is the
defendant’s likely last chance at survival. Unfortunately, Fitzgerald’s attorneys failed to see
or respond to that inescapable fact, scuttling Fitzgerald’s chance for a fair trial.
B. The Importance Of The Sentencing Trial
The decisions of the United States Supreme Court repeatedly have emphasized the
“fundamental" role of counsel to a fair trial. See, e.g., United States v. Cronic, 466 U.S.
648 (1984); Argersinger v. Hamlin, 407 U.S. 24, 31 (1972); Gideon v. Wainwright, 372
U.S. 335, 343-44 (1963). Competent counsel is the means by which other rights of the
person on trial are secured. Cronic, 466 U.S. at 653; see also United States v. Ash, 413
U.S. 300, 307 (1973) (counsel serves as a "guide through complex legal technicalities").
Thus one pillar of our system of criminal justice is the presumption that counsel will act as
an accused’s forceful and undivided advocate. Anders v. California, 386 U.S. 738 (1967).
The right to counsel, of course, incorporates the right to the effective assistance of counsel.
Strickland v. Washington, 446 U.S. 668 (1984).
Trial counsel’s role in a capital sentencing proceeding is comparable to counsel’s role
at trial, i.e., to ensure that the adversarial process works to produce a just result. Strickland
vy. Washington, supra. One of an attorney’s principal duties in a capital case is "to make a
reasonable investigation or to make a reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 668; see also Darden v. Wainwright, 478 U.S. 1036
(1986) (counsel not ineffective where he engaged in extensive pre-trial preparation and
investigation for the penalty phase of defendant’s trial). In a capital case, investigation of,
preparation for, and presentation of the mitigation case at the sentencing trial is in many
cases a much more critical task than is preparing for the sail or snoReR trial. Guilt is
frequently a foregone conclusion. Whether the accused lives or dies, however, is not.
The United States Supreme Court’s decisions have stressed the paramount importance
of providing the sentencer with the fullest information possible concerning the defendant’s
life and characteristics. Lockett v. Ohio, 438 U.S. 586 (1978); see also Jurek v. Texas, 428
U.S. 262, 276 (1976) (sentencer must have before it all possible relevant information about
the individual defendant whose fate it must determine). The reasoning behind this Eighth
Amendment principle is self-evident. An individualized decision is essential in capital cases
in order to insure that each defendant is treated “with that degree of respect due the
uniqueness of the individual." Id. at 605. In a capital sentencing proceeding before a jury,
“the jury is called upon to make a highly subjective, unique, individualized judgment
regarding the punishment that a particular person deserves.’" Turner v. Murray, 476 U.S.
28 (1986) (quoting Caldwell v. Mississippi, 472 U.S. 320 (1985)). It is essential, therefore,
that the sentencer consider "those compassionate or mitigating factors stemming from the
diverse frailties of humankind." Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
The sentencing body’s failure to consider mitigating evidence creates the risk that the death
penalty will be imposed in spite of factors that may call for a less severe penalty. Id.; see
also Skipper v. South Carolina, 476 U.S. 1 (1986) (State’s exclusion of evidence regarding
adjustment to prison violated Eighth Amendment); Eddings v. Oklahoma, 455 U.S. 104
(1982) (sentencers’ failure to consider evidence of turbulent family history violated Eighth
Amendment).
Underlying Lockett and Eddings is the principle that punishment should be directly
related to the personal culpability of the criminal defendant. If the sentencer is to make an
individualized assessment of the appropriateness of the death penalty, "evidence about the
defendant’s background and character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less culpable than defendants who
have no such excuse." California v. Brown, 479 U.S. 538, 545 (1987) (concurring opinion).
In Tison y. Arizona, 481 U.S. __, 107 S.Ct. 1676 (1987), the Court stated that a
“critical facet of the individualized determination of culpability required in capital cases is the
mental state with which the defendant commits the crime." 107 S.Ct. at 1687. The Court
has continually recognized the importance of the defendant’s mental state when determining
the severity of the punishment. See, e.g., Enmund v. Florida, 458 U.S. 104 (1982); Lockett
v. Ohio, 438 U.S. 586 (1978). "Because the individualized assessment of the
appropriateness of the death penalty is a moral inquiry into the culpability of the defendant,"
California v. Brown, 479 U.S. 538, 542 (1987) (O’Connor, J., concurring), evidence of a
defendant’s mental debilities is an important, relevant and compelling mitigating circumstance
which must be adequately explored by defense counsel. This emphasis is also reflected in
the Virginia capital sentencing scheme: several of the statutory mitigating circumstances
telate to the defendant’s mental state at the time of the offense./’
In recognition of these principles, and against the backdrop of the Sixth Amendment
guarantee of the effective assistance of counsel, courts have carefully scrutinized trial
counsel’s investigation, development, and presentation of mitigating evidence in capital cases.
For example, in Curry v. Zant, __ Ga. __, 371 S.E.2d 647 (1988), the Georgia Supreme
Court determined that trial counsel’s failure to obtain an independent psychiatric evaluation
of his client constituted ineffective assistance of counsel. At trial, Curry pled guilty to
capital murder and was sentenced to death. Two psychologists testified at Curry’s state
habeas evidentiary hearing that he did not have the ability to waive his constitutional rights
(thus making the plea unacceptable), and that he was either incapable of distinguishing right
from wrong or incapable of controlling the impulse to commit wrongful acts. The court
’_ See Virginia Code § 19.2-264.4(B)(ii)(iii)(vi) (defendant was under the influence of extreme mental or
emotional disturbance; capacity of the defendant to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law was significantly impaired).
6
recognized that trial counsel was personally dedicated to Curry, but nevertheless determined
that the failure to meaningfully explore expert mental health assistance was unacceptable.
The court stated:
Conscientious counsel is not necessarily effective counsel. The
failure to obtain a second opinion, which might have been the
basis for a successful defense of not guilty by reason of insanity
and would certainly have provided crucial evidence in
mitigation, so prejudiced the defense that the plea of guilty and
the sentence of death must be set aside.
Id., 371 S.E.2d at 640; see also Wilson v. State, 771 P.2d 583 (Nev. 1989).
Similarly, in Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988), a panel of the United
States Court of Appeals for the Eleventh Circuit found trial counsel to be constitutionally
ineffective for failing to investigate, present, and argue to the jury at the sentencing trial
evidence of defendant’s mental history and condition. Although counsel had learned from
the defendant’s sister that the defendant had spent a brief time in a mental hospital four to six
months before the offense occurred, counsel failed to make any additional inquiries after a
state psychiatrist filed a report indicating that the defendant was not mentally ill. The Court
of Appeals concluded:
Although trial counsel was aware well in advance of trial that
appellant had spent at least a brief period of time in a mental
hospital shortly before the shooting, and that for some reason a
psychiatric evaluation had already been ordered, he completely
ignored the possible ramifications of those facts as regards the
sentencing proceeding. This omission denied appellant
reasonably competent representation at the penalty phase.
Id. at 653; see also Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988) (failure to conduct
an investigation into petitioner’s background, to uncover mitigating, psychiatric, IQ, and
childhood information, and to present that information at sentencing trial of death penalty
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case was ineffective assistance of counsel); Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988)
(trial counsel ineffective for failing to investigate a capital defendant’s mental condition for
the purposes of presenting mitigating evidence in the sentencing trial of defendant’s trial.
The paramount importance of the sentencing trial cannot be questioned. And in this
case, the failure of sentencing trial to meet the goals outlined above cannot reasonably be
questioned.
IL. DEFENSE DEFICIENCIES AT SENTENCING TRIAL
Anyone simply scratching the surface would have found and presented to the jury
more information than Fitzgerald’s attorneys Hunt and Burgess did twelve years ago. But
Fitzgerald’s attorneys did not scratch the surface. It is fair to say they did worse than
nothing. No reasonable person would disagree that an attorney who admitted his client’s
guilt during the guilt trial had acted against, rather than for, his client’s interests. Yet that is
exactly what Fitzgerald’s attorneys did before and during the sentencing trial. In the
sentencing trial, jurors may recommend the death penalty only if they find the crime vile or
the defendant likely to be dangerous in the future. Thus "guilt" in the sentencing trial
consists of vileness or future dangerousness. Unethically and impermissibly Fitzgerald’s
attorney told the jury in no uncertain terms that Fitzgerald’s crime was vile. Irrespective of
whether that is true, for Fitzgerald’s attorneys to say so implies to the jury that the case for
the death penalty is unassailable, thereby vitiating the effect of what little mitigating evidence
those attorneys offered in Fitzgerald’s behalf.
Little it was. Fitzgerald’s attorney called as his mitigating witnesses:
* David Bradley, to testify that Fitzgerald was
generous and hard working;
* Brother Harry Fitzgerald, to testify that
Fitzgerald’s mother and family needed Fitzgerald
around for help and assistance; and
* Genny Fitzgerald, to testify that she loved and
needed her son.
To this meager evidence, the defense attorneys added only Dr. Lordi’s report, which detailed
some of Fitzgerald’s drug abuse but offered little else of substance. Hunt knew that
Fitzgerald’s drug use might be a mitigating factor; at Fitzgerald’s sentencing by Judge Gates,
Hunt argued that Fitzgerald be spared, saying that "All of the sources of evidence provided
at this trial showed that Edward Fitzgerald was under the influence of drugs and alcohol to
some extent that night. J think maybe it was not exposed as to what was the extent of his
intoxication." (Sent. Tr. 21-22) Since, as Hunt states, there was every reason to suspect
that drugs played a large role in the crime, it is difficult to understand why Hunt did not
attempt to show how large that role was.”
The quality of this evidence is demonstrated by the fact that the prosecution did not
cross examine any of the witnesses or rebut any of the evidence.
Fitzgerald’s attorney then asked the jury to give Fitzgerald a life sentence, but he
referred to no mitigating factors. Indeed, the judge instructed the jury on two mitigating
2 Jt is worth noting in this regard that Hunt and his co-counsel combined to expend less than 182 hours
preparing and trying the case. The mitigation evidence that ought to have been, and could easily have been,
developed, however, could not be expected simply to fall in Hunt’s lap.
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factors that were suggested by evidence in the guilt trial -- that the crime was committed
under the influence of extreme mental or emotional disturbance or that the capacity of the
defendant to comprehend the criminality of his conduct or conform his conduct to the law
was significantly impaired -- but Hunt made no reference to these factors. Failing to argue
for any mitigation whatever, Hunt told the jury that "we are asking for mercy, ladies and
gentlemen, and that is the long and short of it." (Tr. 928) Whatever the weight or
legitimacy of this plea, Hunt undermined it by acknowledging to the jury that Fitzgerald
might not deserve it: "Mercy is a funny thing, ladies and gentlemen. It is given many times
when it is not deserved." (Tr. 929)
In short, Fitzgerald’s attorneys admitted to the jury that Fitzgerald’s crime was vile,
eschewed the presentation of any mitigating evidence in favor of a plea for mercy, and then
thwarted the effect of their own plea by conceding that Fitzgerald might not deserve mercy.
Such incompetent and unprofessional conduct hardly can be characterized as effective
assistance of counsel.”
Most importantly, this presentation ignored the facts. As we show below, a strong
case in mitigation could easily have been made.
¥ Fitzgerald’s attorneys’ lack of zeal was evidenced in the guilt trial as well as the sentencing trial. During
closing arguments, the Commonwealth’s Attorney started to cry. Fitzgerald’s attorney reacted to this
unprofessional display not by objecting or moving for mistrial, but by doing nothing. That Mr. Hunt’s wife
worked as an administrative assistant for the Commonwealth’s Attorney may help explain his reluctance to
confront the Commonwealth’s Attorney.
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A. The Strong Case For Mitigation
What was the mitigation that could have saved Fitzgerald from the death penalty?
Many theories are suggested by no less obvious a source than the sentencing statute, Va.
Code §19.2-264(4). These include youth, extreme mental stress, and impairment by drugs
and alcohol. Fitzgerald was 23, so a plea in mitigation on account of his youth was certainly
not out of the question. None was made, however. Even more obvious a mitigation strategy
was drug and alcohol impairment. During the guilt trial, witness after witness testified that
Fitzgerald was heavily under the influence of drugs and alcohol at the time of the crime.
Given that the power of this ground for mitigation is recognized even in the sentencing
statute, Fitzgerald’s attorneys at least ought to have explored the option. If they had done
so, they would have discovered strong and persuasive evidence in Fitzgerald’s favor.
Abundant evidence showed that drugs and alcohol contributed substantially to the commission
of the crime and suggested that Fitzgerald "went wild" or "lost it.". This possibility was
supported by evidence that Fitzgerald’s drug and alcohol abuse extended back a decade and
had been increasingly heavy in the months before the crime. Finally, Fitzgerald’s attorneys
could easily have discovered that his descent into drug abuse occurred in and was explained
by an environment of extreme physical and psychological abuse.
1. Fitzgerald The Man
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First and most importantly, Fitzgerald had no history of violent criminal conduct.’
Fitzgerald’s record consists of traffic offenses and five minor disturbances of the peace that
resulted in $25 or $50 fines. Fitzgerald was never imprisoned until November 1980. The
jury was entitled, and the defense was obligated to present evidence of Fitzgerald’s character
as known by persons close to him.
A cursory investigation reveals a man whom his family, including his two children,
friends, neighbors, men on death row, and guards describe as good, sharing, responsible,
generous, and loving.” Since his conviction and incarceration on death row, Fitzgerald has
emerged as a supportive and positive influence with his fellow inmates, often acting as a
necessary link between the less capable inmates and prison administration.
Fitzgerald was the first man on Virginia’s death row to get his G.E.D. He used his
education to read, study, and learn what he could about the law. He became a student of the
Chinese language, Taoism, and Zen Buddhism. These were philosophies which, combined
with his Catholicism, gave him the tools and ability to help others on death row.
“ On April 3, 1979, Fitzgerald awoke from his bed, donned his pants -- which contained a small pistol -- and
wandered into his living room. There he found his naked wife engaged in sexual intercourse with one of his
best friends. Fitzgerald emptied the pistol in the pair’s direction, hitting his wife. Immediately overcome by
what he had done, Fitzgerald called the police, told them what he had done, and waited for their arrival. On
June 26, 1979, Fitzgerald pleaded guilty to unlawful wounding. Because of the provocation that had led to the
shooting and because Fitzgerald turned himself in, he was placed on probation.
# Jimmy reports that when he was in Thailand and Vietnam Fitzgerald was the only family member who wrote
him regularly. Those letters meant a lot to Jimmy.
Randy Blankenship first met Fitzgerald when they were in the 6th grade, and they remained friends
through school. He reports that Fitzgerald helped him with his school work and was a very responsible person
and a good friend.
Dorothy Redford, Fitzgerald’s former mother-in-law and the grandmother of his children reports that
Fitzgerald was a perfect gentleman and one of the nicest young men she has ever met. One way Fitzgerald
showed his consideration was to take her husband’s grandchildren on outings such as nature trails. Dorothy
Redford reports that he stays in constant touch with his children when they are with her. He calls whenever he
is allowed to and-sends them letters.almost daily..The letters are "good, constructive and loving letters telling
them to study, behave and stay off drugs”.
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Fitzgerald reached out to the neediest men on death row -- the retarded, the mentally
ill, and the suicidal. He persistently encouraged them to come out of their shells, understand
themselves and take responsibility for their acts and their situation. As Joe Giarratano
writes" ". . . Fitz (Edward) has changed and grown tremendously . . . The lessons he has
learned he has tried to share with the other men on the row, and he is always taking someone
under his wing to look after."
As death row grew and the pods were separated, Fitzgerald became "pod monitor" for
the Virginia Coalition on Jails and Prisons. His job for the Coalition was to monitor the
cases and men in his pod and alert the Coalition to any changes that could affect their
appeals. Fitzgerald showed good judgment in carrying out his job, and the Coalition was
able to rely on him completely.
Fitzgerald entered death row a drug addict and alcoholic. There are no programs on
death row and no treatment is given for such addiction. Fitzgerald has continued to drink,
and he has gotten charges when he was drinking. Nonetheless, guards and administrators
speak highly of him. Chaplain Ford recently visited death row and heard that two guards
became emotionally upset when Fitzgerald was taken from the row to the death house.
During his visit to the row, the security chief took Chaplain Ford aside and spoke of
Fitzgerald in very positive terms.
2. Fitzgerald’s Abuse As A Child
Fitzgerald was born August 15, 1957, to Genny Hanratty and Harry Fitzgerald.
Harry was an alcoholic who abused their children throughout their childhoods. The common
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belief among Genny’s ten brothers and sisters” was that Harry was crazy when he was
drunk. That was often; he drank every day, and Genny’s sister Florence remembers that
Harry sometimes carried a suitcase of liquor bottles around with him anywhere he went.
When the boys were babies, Harry would jerk them out of their cribs by the arm. He
beat them with belts and punched them in the head with his fists from the time they were two
years old until he died, when Fitzgerald was fifteen. Genny’s sister Claire saw Harry punch
the boys in the head. She never saw Harry knock Fitzgerald unconscious, though she
believed Harry restrained himself around her. Sometimes Harry took their food away for no
more than spite. Harry seldom talked to the children or smiled at them, and when he wanted
them to stop something, he relied on a slap instead of a word. Many nights Harry’s violence
forced Genny to take the kids to stay with their friends Elmer and Elsie. Harry’s response to
this survival tactic was to accuse Genny of having an affair with Elmer.
Genny had cancer when she was pregnant with Fitzgerald”, and Harry wanted her to
get an abortion. She would not, and after Fitzgerald was born, Harry would fight with
Genny about Fitzgerald in front of him, suggesting he should have been aborted. Florence
£ Genny was one of eleven brothers and sisters. We have learned that the family was prone to alcoholism and
manic depression. According to Michael Hanratty (son of Genny’s police officer brother Eddie), four of the
brothers and sisters, including perhaps Genny, were manic depressive. Michael states that in one manic episode
his Aunt Irene threatened to throw her six-year old son out the window. Before he was diagnosed as manic
depressive, Michael was prone to blackouts during which he was very violent. There is a suggestion that other
Hanratty men were prone to the same problem. Eventually Michael was treated with haldol and thorazine, and
his condition is now controlled. Fitzgerald’s brother Jimmy also points to a family history of manic depression.
This suggests the possibility of a strong genetic or genetic-cultural component to Fitzgerald’s crime that would
mitigate against the death penalty. Members of the family have expressed a willingness to release their
psychiatric and medical records to us, but we do not have the time to investigate this in the manner necessary.
2 We have discovered that Fitzgerald’s mother Genny had a mastectomy soon after Fitzgerald was born in
1957. Her sisters believe she received treatment for cancer during her pregnancy. We do not know what that
treatment was, and until we do, we cannot know what the effect on Fitzgerald in utero might have been.
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believes that Fitzgerald knew from a very young age that Harry did not want him. Harry
blamed Fitzgerald for many things, and Fitzgerald came to believe that he deserved the abuse
his father meted out to him.
Genny went back into the hospital for a mastectomy right after the birth, but Harry
refused to take care of Fitzgerald. Fitzgerald’s brother Jimmy, who was only six himself,
cared for Fitzgerald and changed his diapers. Even when Fitzgerald was older, Harry gave
Genny no money from his job with the railroad to take care of the kids. This forced Genny
to work at a movie house, and she had to take Fitzgerald to work with her because Harry
would not take care of him.
Several times before Fitzgerald was four, Genny’s brother James drove down to
Richmond from New York to confront Harry about the abuse. James warned Harry to stop
hurting the children and Genny. Harry was afraid to hit the boys in front of James, so James
never saw Harry hit Fitzgerald. Once however, he noticed a large bruise on Fitzgerald’s left
side. Harry claimed that three days earlier Fitzgerald had disobeyed Harry’s order to go to
bed, so Harry had slapped him. James did not believe a mere slap could have cause so large
and lingering a bruise. James observed that Fitzgerald and his brothers were terrified of
Harry. When the boys were at James’s house, he played with them as much as he could,
and they all wanted to sleep with him at night. Eventually Genny became afraid that James
would hurt Harry, so she dropped out of touch with James.
When Fitzgerald was four years old, Genny packed up the kids and took them to New
York. Before she left, Genny told Claire that she had to leave Harry because of what he was
doing to the children. Genny told her sister Florence and brother James the same thing and
15
wrote her brother Eddie to tell a similar story. Genny stayed in New York for some time.
Unable to reach her physically, Harry would call Genny and verbally abuse her. At one
point during that time, Genny sued Harry in Bronx Family Court for support. She attached
an affidavit to her petition, in which she said that Harry "was very cruel to the children,
many times he struck them for no good reason. He was very mean to the older boy James.
He told the children that I (the mother) was no good. . . . The children often asked me why
the father kept saying I was no good." Fitzgerald’s brother Jimmy remembers testifying in
that case that "we’d been beaten by my father." Eventually, however, Genny moved back to
Richmond on Harry’s promise of better behavior, though when she got home Harry seemed
not to care one way or another. Claire went with them, and when she left, Fitzgerald and
his brothers begged her to take them with her.
The abuse was not confined to the children, Harry beat Genny in front of the boys,
and as she stated in her affidavit, he often told them she was no good. Indeed, Jimmy
believes the physical abuse was directed more at Genny than at the kids. Jimmy escaped to
the military when he was seventeen and never saw his father again. Fitzgerald’s brother
Harry also left when he was fifteen or sixteen because of father Harry’s meanness.
Fitzgerald was most affected by the abuse. Claire describes him as “scared all the
time." Florence remembered him as a "very scared child" who distrusted all men and hid
behind women when men were around. Fitzgerald hid even from Florence’s husband, who
was good to him. Between the ages of two and four, Fitzgerald would beat his head on the
floor, out of fear, Claire believed. Harry tried to stop this by hitting Fitzgerald some more,
but that did not work.
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3. Fitzgerald’s Long History Of Drug Abuse
It is no surprise that Fitzgerald sought escape in drugs, growing up under the heel of
his father Harry. But the age at which he began to use drugs is shocking. Fitzgerald was
twelve years old when he took his first drug, LSD, in 1969. By 1971, Fitzgerald had begun
to use marijuana, and by 1972, he was drinking whiskey and scotch. Fitzgerald acquired a
taste for beer by age fifteen, and he and Randy Blankenship used to go bar-hopping.
In turning to drugs, Fitzgerald was following in the footsteps of his older brothers.
Fitzgerald’s brother Harry almost died from an overdose when Harry was in the eighth
grade. The LSD that Fitzgerald first tried was something of brother Harry’s or Jimmy’s that
he found around the house. When Jimmy left to join the military in 1969, Fitzgerald had
started using drugs and brother Harry was using them heavily.
In 1975, Fitzgerald met Bonnie Shipp, and she introduced him to cocaine,
methamphetamine, and on occasions heroin. Bonnie’s mother Dorothy Redford describes
Fitzgerald as one of the nicest men her daughter brought home. However, a real difference
arose in Fitzgerald when he took drugs, she says. When he wasn’t on them, Ms. Redford
calls Fitzgerald easygoing and nice.
Fitzgerald met Pat Cubbage in 1979 when she moved into the apartment upstairs from
his and Bonnie’s. Cubbage taught him how to inject cocaine, methamphetamine, heroin, and
LSD(?). Fitzgerald thereafter preferred mainlining to other forms of ingestion. Generally he
injected the cocaine or methamphetamine in combination with scotch or vodka.
Except for the school years of 1970-71 and 1972-73, Fitzgerald never was off drugs
from 1969 to 1980. As a teenager in the. summers of 1970 and 1971, Fitzgerald did LSD
17
every weekend. By the age of sixteen, Fitzgerald was a regular drinker of hard liquors.
Fitzgerald first tried methamphetamine in 1976. In the two years preceding November 1980,
Fitzgerald did some drug every day.
In the months before November, Fitzgerald took LSD, which he then viewed as a safe
social drug, almost every weekend. When he was working, he worked four-day weeks, and
on the weekends, he and his friends did drugs constantly from Thursday through Sunday.
Fitzgerald often used amphetamines to get to and through work and then alcohol to get to
sleep. The lucrative construction job ended in the summer. With the money he had saved,
Fitzgerald did drugs, particularly methamphetamine, seven days a week. His friend Don
Henn reported that Fitzgerald would do any drugs available any time.
4, The Unusual Circumstances Surrounding The Crime
In the year leading up to November 13, 1980, Edward Benton Fitzgerald was
embarked on increasingly heavy use of a variety of drugs. Fitzgerald’s wife Bonnie was
confined to a wheel chair as a result of a shooting incident between her and Fitzgerald, and
her condition enabled her to obtain numerous prescription drugs, which she and Fitzgerald
could either ingest or trade for other drugs. Among the drugs Bonnie could get was
Tranxene, a tranquilizer. In Pat Cubbage, Fitzgerald had met a steady supplier of
methamphetamine. Fitzgerald had known dealers in LSD, including Daniel Johnson, since
he was twelve years old, and on occasion he could get cocaine, heroin, and other drugs.
Fitzgerald mainlined many of these drugs, a practice he was taught by Cubbage. Marijuana
was as easily obtainable as alcohol, and Fitzgerald used both in abundance.
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Fitzgerald was an occasional construction worker. In the months preceding
November 13, he, Bonnie, and their two children were living off his earnings from his last
construction job. Thus in those months Fitzgerald was using some sort of drug every day.
Fitzgerald was ingesting or injecting methamphetamine 5 to 7 days a week, three times a
day.
The event that landed Fitzgerald on death row began when he collected a prescription
of Tranxene, 100 tablets, for Bonnie. Fitzgerald gave these to Don Henn around 6:00 p.m.,
retaining 15 for himself. Fitzgerald swallowed three or four immediately. Henn and
Fitzgerald then obtained one and one half cases of beer from the Big Star market. They
returned to Fitzgerald’s house, where they met Pat Cubbage and Angelia Robinson. Danny
Johnson arrived later. The group drank beers and smoked marijuana. After awhile,
Cubbage, Robinson, and Henn left to get mixed drinks. Fitzgerald and Johnson continued to
drink.
Dave Bradley called Fitzgerald around 10:00 p.m. to discuss whether an eviction
notice Bradley had found on his door was legitimate. In the course of the discussion, the
decision was made for Fitzgerald to go to the Bradleys. Trouble was anticipated. Johnson
said he would drive them over, but before leaving, Johnson strapped Fitzgerald’s machete
around his waist. On the way over, Fitzgerald downed a few more Tranxene. Before the
evening was over, he had taken all fifteen.
When they arrived at the Bradleys around 10:30, there was no trouble, so Fitzgerald
and Johnson settled in and drank some more beers. Around 1:30, Dave Bradley said he
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needed to get to bed because he had to work the next day. Fitzgerald and Johnson left.
Johnson still wore the machete.
In the car, Fitzgerald produced some LSD and swallowed a couple of squares. They
drove to Don Henn’s house with the idea of breaking in to steal some quaaludes. According
to Johnson, after they broke in, Fitzgerald went upstairs while Johnson looked for quaaludes
or money. Throughout the commission of the crime, Fitzgerald continued to ingest
significant quantities and varieties of drugs and alcohol.
As they drove away from the scene, Fitzgerald pressed two squares of LSD on
Johnson and took a few more himself. They drove to Fitzgerald’s house. Johnson changed
clothes and drove home. Fitzgerald went to bed.
Johnson and Fitzgerald were both arrested the next day. Fitzgerald was high when he
was arrested late that evening, so arresting officer Shelton stayed at the jail until early
morning to be sure that Fitzgerald was okay. Detective Shelton observed that Fitzgerald was
a completely different person when high than when straight. Fitzgerald had little memory of
the night’s events. Johnson at first denied any knowledge, but then he changed his mind.
He told the police a detailed story that placed full blame on Fitzgerald and exonerated
Johnson almost completely. Fitzgerald went to trial for capital murder. Johnson reached a
deal with the prosecutor for forty years.
Ti. DISPARATE TREATMENT OF CO-DEFENDANT
While there is no question that Fitzgerald was involved in the murder of Cubbage,
there also is no question but that Daniel Johnson participated. Indeed, there is strong
evidence that he is equally culpable. His car was involved, and though he claimed that
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Fitzgerald was choosing their route as they drove, the crime occurred in Johnson’s neck of
the woods, not Fitzgerald’s. Cubbage’s blood was on Johnson’s shoes and clothes. He
admitted that he was present throughout the crime. While Johnson testified that he remained
with Fitzgerald throughout the crime only because Fitzgerald threatened him, the plain truth
is that he had many chances to escape, and not only did he use none of them, he permitted
Fitzgerald to put a "1%’er" tatoo on his shoulder. And most damning, the last people to see
Johnson and Fitzgerald before the murder testified that Johnson, not Fitzgerald, was carrying
the machete.
Some years after the verdict, Fitzgerald’s habeas attorney learned that Johnson had
made a confession to a fellow inmate while Johnson was awaiting trial for Cubbage’s
murder. Michael A. O’Neill has sworn that Johnson confessed to having "chopped"
Cubbage to death. O’Neill also swears that Johnson said he would beat the charge by
blaming Fitzgerald for it all.’
Aside from Johnson’s self-serving testimony, the evidence against Fitzgerald was no
better than that against Johnson. Significantly, Judge Gates presided over both Fitzgerald’s
trial and Johnson’s trial. Johnson’s version of events, if believed, would seem to have
exonerated him from a murder charge, or at least led to a lesser sentence. But Judge Gates
unhesitatingly found Johnson guilty of first degree murder and just as swiftly sentenced him
to forty years, the maximum sentence mentioned in the plea agreement. Thus it seems clear
that Johnson was equally as culpable as Fitzgerald.
® Johnson took a polygraph test that indicates he did not cut Cubbage, but evidently that test did not exonerate
Johnson from having raped or sodomized Cubbage, from having held her down, or from having urged
Pier ove, 9 which acts would have made Johnson equally as culpable as Fitzgerald. In any event,
polygraphs are not 100% reliable, and there essentially is no other evidence to exonerate Johnson.
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Significantly the jury knew that Johnson might be equally culpable, but that he would
not receive either the death penalty or a life sentence. Yet Fitzgerald’s attorneys failed to
argue to the jury the import of such disparate treatment.” In the post-Furman era, on seven
occasions governors have commuted one defendant’s death sentence when another defendant
perhaps equally as culpable had gotten life or less.” Before 1962, Virginia’s governors
commuted five death sentences based on such sentencing disparities.’ These commutations
amply manifest the power of the principal of equal punishment for equal crimes. Juries are
no less susceptible to the power of this principal than governors. With so potent an
argument staring them in the face, Fitzgerald’s attorneys should not have neglected to argue
that if Johnson would live, then so too should Fitzgerald.
Iv. CONCLUSION
Fitzgerald’s present attorneys began to represent him on July 2, 1992, a bare three
weeks before his scheduled execution date of July 23, 1992. We were forced to take the
case so late because of the unfortunate and unanticipated withdrawal of the lawyers who had
2” Hunt hinted at this point during the guilt phase, but only as a reason to disbelieve Johnson. He never plainly
argued that the state’s willingness to let Johnson keep his life should incline them toward sparing Fitzgerald’s.
4” ‘1. Charles Hill, September 29, 1977, Georgia;
. Darrell Hoy, January 9, 1980, Florida;
Richard Gibson, May 6, 1980, Florida;
. Michael Salvatore, May 19, 1981, Florida;
|. Fred Davis, December 16, 1988, Georgia;
. Beatrice Lampkins, January 10, 1991, Illinois;
. Harold Glenn Williams, March 22, 1991, Georgia.
NAMNEYD
wv 1. Wilson Bryan, July 7, 1903, Governor Montague, S. Doc. 2 (1904) at 14;
2. Earl Gamble, December 20, 1918, Governor Davis, H. Doc. 6 (1920) at 59;
3. Clemen Dixon, August 29, 1934, Governor Perry, S. Doc. 9 (1936) at 3;
4. Grover Newman, March 29, 1956, Governor Stanley, S. Doc. 2 (1956) at 8; and
5. Ralph Martin, December 7,. 1961, Governor Almand, S. Doc. 2 (1962) at 26.
There were no executions between March 1962 and August 1982.
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agreed in April to represent Fitzgerald. At the time we took the case, next to nothing had
been done to prepare a clemency petition for Fitzgerald. We can state from experience that
three weeks is not one tenth of the time needed to perform the investigation and research
essential if we are to present the governor with adequate information for the decision he must
make. We have done our besi, and notwithstanding the limited time, as discussed above, we
have found significant and substantial information justifying clemency for Fitzgerald.
Fitzgerald’s sentencing trial did not inform the jury in the manner necessary for them
to reach an intelligent and reliable decision on whether Fitzgerald should live or die. Rather
that trial concealed from them significant and substantial information. The incomplete nature
of the investigation that preceded this petition opens the door to a great deal more
information that would militate against so severe a punishment for Fitzgerald. The execution
of Edward Fitzgerald scheduled to be carried out on July 23, 1992, consequently depends on
the unreliable recommendation from a capital sentencing trial that only can be termed a
failure. The examples of mitigating evidence that were available, yet never presented to the
jury during the sentencing trial, are not exhaustive. They represent only those facts
developed during the past two weeks. This evidence is offered for your consideration not to
convince you that the jury in fact would have been persuaded -- that we can never know --
but to demonstrate the fundamental flaw in Fitzgerald’s sentencing trial. Fitzgerald had a
tight to introduce this evidence; the jury had a right to hear it. This did not happen. The
system failed. Fitzgerald should not be condemned to death because the system went awry.
Commuting Fitzgerald’s sentence to life imprisonment without parole will correct this
injustice.
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