DELANEY, McCartTHy, CoLTON & BorTzin. P.C.
ATTORNEYS AND COUNSELLORS AT LAW
40] WYTHE STREET
ALEXANDRIA, VIRGINIA 22514 °
110 NORTH WASHINGTON STREET
SUITE 405,
ROCKVILLE, MARYLAND 20850,
MARC H. BOTZIN®
DONNE L. COLTON (703) 836-8989
JOHN B. DELANEY
JOSEPH J. MCCARTHY® FAX (703) 836-4285
OF COUNSEL.
KENNETH N. BRAND, P.C.
*ALSO ADMITTED IN MARYLAND
AND THE DISTRICT OF COLUMBIA
August 19, 1998
The Honorable James Gilmore
Capitol Square
Richmond, Virginia 23219
Re: — Johnile L. Dubois, # 181652
Request for Commutation of Capital Punishment
Execution Date: August 31, 1998
Dear Governor Gilmore:
This firm represents Mr. Johnile L. Dubois, a prisoner in Virginia scheduled to be
executed on August 31, 1998. Pursuant to Va. Code § 53.1-229, Mr. Dubois respectfully
requests Your Honor commute his sentence of capital punishment. I ask for the opportunity to
meet with Your Honor to discuss this matter at Your Honor’s convenience, taking into
consideration, of course, the approaching execution date.
This case is unique. For the first time in Virginia’s penal history, its citizens will have
cause to question the Commonwealth’s word.
If the Commonwealth executes him on August 31, Mr. Dubois will be the one and only
person in Virginia to be executed by the Commonwealth after entering into a plea agreement
with the Commonwealth by which the Commonwealth agreed not to seek his execution if he
cooperated fully with the Commonwealth in its investigation and prosecution of the other
defendants in the case.' Mr. Dubois, in faithful compliance with this agreement, completely and
honestly cooperated with the Commonwealth.? He met repeatedly with the Commonwealth’s
Attorney and law enforcement agents. He testified truthfully for the Commonwealth at all trials
of codefendants. In exchange, the Commonwealth agreed that it would recommend a life
‘ See Plea Acceptance Sheet, Attachment A.
2 See Sentencing Hearing Transcript, Attachment B.
1
sentence to the circuit court.? He also was assured by his attorneys that he would receive a life
sentence in exchange for his truthful, complete cooperation.’ Further, he heard the
Commonwealth’s Attorney, Martin Bullock, explain to the community through the local press,
The Virginia Pilot, that Mr. Dubois’ prior criminal record did not, in his judgment, support the
death sentence.> In spite of all of this, the circuit court, acting against the Commonwealth’s
recommendation, sentenced Mr. Dubois to die in the electric chair after a ten minute sentencing
hearing at which the Commonwealth called no witnesses, offered no evidence, and argued for the
life sentence on behalf of Mr. Dubois.
Statement of Facts
On November 20, 1991, around 6:00 p.m., Mr. Dubois and three other young men entered
"In a Hurry" convenience store in Portsmouth, Virginia. The three store employees were Philip
Council, Angela Garcia, and Shari Watson. Ms. Garcia had her back to the door when the men
came in. She heard a gunshot, turned around and saw one of the men holding a gun. Ms.
Watson also had her back turned, but stated that the shot was fired just past her head. One of the
men ordered the clerks to open two cash registers. Ms. Garcia opened one register. Mr. Council
tried unsuccessfully to open the second cash register while Ms. Garcia and Ms. Watson hid in
back of the store. Ms. Garcia and Ms. Watson heard someone ask Mr. Council again to open the
register and stated that men began beating Mr. Council. The women heard the shot which hit
Mr. Council in the chest. Eventually, Ms. Garcia opened the cash register, which contained
approximately $400. The robbers fled with money.
At the sentencing hearing on October 28, 1992, Mr. Bullock confirmed that Mr. Dubois
complied fully with all of his obligations under the plea agreement and recommended to the
circuit court that it impose a life sentence, not the death sentence, for the capital murder count.
The circuit court concluded that Mr. Dubois should be sentenced to death because Mr. Dubois’
criminal record suggested future dangerousness:
I have looked at your record, and you do have a record involving certain felonies.
I looked at your background according to the report, and J take it is correct,
because nobody has challenged it .. . You are twenty-six years of age, and you
have nine children already, not supporting a one. You were on probation and
parole. You couldn't make that. You came out and got back in trouble. . .
[after] consideration of your past criminal history and record with respect to
convictions, [the court concludes] that there is a probability that you will commit
i See June 12, 1992, letter from Commonwealth’s Attorney Martin Bullock to Mr. Dubois’
trial attorney, J. Wayne Sprinkle, Attachment C.
4 See letters from J. Wayne Sprinkle to Mr. Dubois, Attachment D.
s See Virginia Pilot, October 29, 1992, Attachment E.
2
criminal acts of violence that will constitute a serious continuing threat to
society.”
The presentence report, however, revealed that Mr. Dubois had only three convictions: grand
larceny, possession of a firearm by a felon and, the only prior crime of violence, a misdemeanor
assault.®
Prior Proceedings
Mr. Dubois was charged with one count of capital murder in violation of Va. Code §
18.2-31(4), one count of robbery in violation of Va. Code § 18.2-58, one count of attempted
murder, one count of using a firearm in commission of capital murder in violation of Va. Code §
18.2-53.1, one count of using a firearm in commission of robbery in violation of Va. Code §
18.2-53.1, and one count of using a firearm while attempting to commit murder, in violation of
Va. Code § 18.2-53.1.
On August 4, 1992, Mr. Dubois pled guilty to all charges pursuant to the plea agreement
with the Commonwealth. The Honorable Johnny E. Morrison accepted Mr. Dubois' guilty pleas
and found him guilty as charged on all counts.
On October 28, 1992, Judge Morrison sentenced Mr. Dubois to death for capital murder.
In addition, he sentenced Mr. Dubois to life imprisonment for robbery, ten years imprisonment
for attempted murder, two years imprisonment for the first firearm charge, four years
imprisonment for the second firearm charge, and four years imprisonment for the third firearm
charge.
Mr. Dubois filed timely notice of appeal to the Virginia Supreme Court. On September
17, 1993, the Virginia Supreme Court affirmed judgment of the Portsmouth Circuit Court.
Dubois v. Commonwealth, 246 Va. 260, 435 S.E.2d 636 (1993).”
On March 28, 1994, the Supreme Court denied Mr. Dubois' pro se Petition for Writ of
Certiorari from the judgment of the Virginia Supreme Court. Dubois v. Virginia, 114 S. Ct.
1389 (1994) (Blackmun, J., dissenting).
On April 17, 1995, Mr. Dubois filed his Petition for a Writ of Habeas Corpus in the
Circuit Court for the City of Portsmouth. On March 15, 1996, the Virginia Supreme Court
a See Excerpts from the Presentence Report, Attachment F.
z See Dubois v. Commownealth, 246 Va. 260, 435 S.E.2d 636 (1993), Attachment G.
3
dismissed this Petition.? On June 7, 1996, the Virginia Supreme Court denied a Petition for
Rehearing. Judge Morrison then ordered Mr. Dubois to be executed on August 28, 1996. On
August 22, 1996, the United States District Court denied Mr. Dubois’ Motion to Stay Execution.
On August 23, 1996, Mr. Dubois filed an appeal to the Fourth Circuit Court of Appeal, which
automatically stayed execution. On September 13, 1996, the Fourth Circuit Court of Appeals
granted a stay of execution until the District Court ruled on merits of Mr. Dubois’ application for
relief under 28 U.S.C. § 2254.
On June 30, 1997, the District Court dismissed the Petition. On July 29, 1997, the
District Court denied Mr. Dubois’ Motion to Alter or Amend the Judgment. On August 26,
1997, Mr. Dubois filed his Notice of Appeal to the Fourth Circuit Court of Appeals. On May 26,
1998, the Fourth Circuit denied Mr. Dubois’ appeal. On June 22, 1998, the Fourth Circuit denied
Mr. Dubois’ Petition for Rehearing with Suggestion for Rehearing in Banc. Mr. Dubois intends
shortly to file his Petition for a Writ of Certiorari in the Supreme Court and to seek a stay of
execution from the Court.
Recent Proceedings -
On Thursday, August 13, I met with Judge Morrison in Portsmouth, Virginia. Mr.
Bullock and Ms. Pamela Anne Rumpz, the Assistant Attorney General involved in this case at
the habeas level, also were present. I asked Judge Morrison to reconsider the death sentence he
imposed on October 28, 1992. At this meeting, Mr. Bullock echoed his 1992 position, on behalf
of the Commonwealth, that a life sentence for the capital murder count was the appropriate
resolution of this matter. Ms. Rumpz, on behalf of the Attorney General’s Office, took no
position. She represented to the Judge Morrison that her office never took a position regarding
the sentence or clemency. She allowed Mr. Bullock to speak for the Commonwealth. There is
good cause for this reconsideration.
Judge Morrison premised his sentence on Mr. Dubois’ future dangerousness.? His
concern finds scant support in Mr. Dubois’ prior criminal history, which includes only one crime
of violence: the misdemeanor assault conviction. Moreover, though repugnant, as is every
murder, the facts of the case recommend a conclusion these young men did not enter the
convenience store with murder in mind. A fair interpretation of the events suggests impulsive
and panic-driven violence prompted by the delay in opening the register. Given Mr. Dubois’s
age and modest, non-violent record, these events cannot support his execution.
8 See Dubois v. Warden of the Mecklenburg Correction Center, Attachment H.
2 Va. Code § 19.2-264.2 permits a death sentence only if the sentencing court finds the
Commonwealth has proven beyond a reasonable doubt either that the defendant represents a continuing
serious threat to the community or that the crime itself was outrageously or wantonly vile, horrible or
inhuman.
mare
Most troubling, though, is the question whether Judge Morrison even had the statutory
authority to impose the death sentence. Va. Code § 19.2-262.4 permits circuit courts to impose
the death sentence only after the Commonwealth has proven, beyond any reasonable doubt, at
the sentencing hearing either future dangerousness or vileness of the crime. At the sentencing
hearing in October, 1992, Mr. Bullock did not attempt to prove either prong of the statute which
would then, and only then, trigger the circuit court’s authority to impose the death sentence. In
accordance with the plea agreement. the Commonwealth, instead, urged Judge Morrison to
impose a life sentence. Thus, after a ten minute hearing, and without proof from the
Commonwealth, the question fairly presents itself whether Judge Morrison ever had the authority
to impose the death penalty. This issue was raised in Mr. Dubois’ federal Petition for a Writ of
Habeas Corpus. On review, the Fourth Circuit Court of Appeals rejected this argument,
however, because the author of Mr. Dubois’ State Petition for a Writ of Habeas Corpus neglected
to frame this argument in terms of a federal constitutional infraction:
To the extent that this claim alleges a violation of the Due Process Clause or any other
federal right, Dubois does not appear to have raised this precise claim in state court - a
failure which forecloses our ability to award habeas relief based upon this non-exhausted
claim...
Dubois v, Greene, No. 97-21, slip op. 15, (4th Cir. May 26, 1998)(unpublished opinion)."° The
opinion exalts form over substance. The Fourth Circuit believes it is unable to reach this issue
given the regretable restraints of procedural due process. The statutory remedy of clemency
enable’s Your Honor’s grasp to extend beyond procedural consistency. Your Honor’s grasp can
reach further, to fairness, fidelity to statutory restraints on imposition of the death sentence and to
ajust result. Your Honor can remedy this error by granting clemency.
At the time of this writing, Judge Morrison still is considering whether he will write to
Your Honor expressing a reconsideration of his judgment. That Judge Morrison is still
pondering this question raises hope. It also illustrates the dilemma this case presents. The
Commonwealth, on the other hand, already has spoken in this case through the plea agreement:
in 1992 it recommended Mr. Dubois be sentenced to life in prison with the possibility of parole.
Mr. Bullock remains faithful to this recommendation to this day. At the sentencing
hearing Judge Morrison observed that the lawyers know a case best. Mr. Bullock, better than
anyone, was in a position to assess this case and had good reason to tell The Virginia Pilot, the
day after sentencing, that he did not believe the facts of the case supported a death sentence for
Mr. Dubois.
Your Honor has the power to partially restore the terms of the plea agreement Virginia
0 See, Dubois v. Greene, No. 97-21, 4th Cir. May 26, 1998)(unpublished opinion).
Attachment I.
made with one of her citizens. Your Honor cannot impose a life sentence with the possibility of
parole. Your Honor, however, can impose a life sentence without the possibility of parole. The
Commonwealth itself has already recommended this result to Judge Morrison and to you. Even
if Judge Morrison declines to change course when he revisits this issue, clemency will in all
respects accommodate Judge Morrison’s 1992 concern that Mr. Dubois represented a future
danger: he will never leave prison if Your Honor commutes his death sentence.
Respectfully, on behalf of Mr. Dubois, I ask for your gracious consideration of this
request. J ask that you commute Mr. Dubois’ sentence to life in prison without the possibility of
parole. Thank you.
JJM/cp
Enclosures
xc: Mr. Johnile L. Dubois
The Honorable Johnny E. Morrison
The Honorable Martin Bullock, Esq.
Mr. Joseph Bowman, Esq.
Mr. Robert Lee, Esq.
Ms. Pamela Anne Rumpz, Esq.
