PETITION FOR EXECUTIVE CLEMENCY
Lori S. Sherman
Marc De Leeuw
James V. Masella
Christine Monterosso
John C. Stellabotte
Elizabeth Carroll,
Of Counsel.
December 1, 1997
of
MICHAEL CHARLES SATCHER
John L. Hardiman
125 Broad Street
New York, New York 10004
(212) 558-4070
Lee Ann Anderson McCall
1701 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 956-7695
Counsel for
Michael Charles Satcher
TABLE OF CONTENTS
Page
INTRODUCTION .......6 00 c eee eee cence cence ee eeee 1
I THE EVIDENCE AGAINST MICHAEL WAS WEAK .............. 5
I. EXECUTION CANNOT BE JUSTIFIED ON THE BASIS
OF THE FLAWED TRIAL DNA EVIDENCE .................. 15
Til. EVEN IF MICHAEL WERE NOT INNOCENT,
LIFE WITHOUT PAROLE WOULD BE A MORE
APPROPRIATE SENTENCE FORHIM ...................... 21
IV. ERRORS AT MICHAEL’S TRIAL
RENDER THE JURY’S VERDICT UNRELIABLE ............... 29
CONCLUSION ...... 0.200 eneeee 35
INTRODUCTION
Michael Satcher is a loving father of two small boys, respected within
his church, and, prior to 1990, had no history of violent behavior. He was also
convicted of the cold-blooded killing of a young Arlington, Virginia woman in March
1990 and sits on death row with a fast approaching execution date of December 9,
1997. This contradiction of character could have a simple explanation -- innocence --
which has not yet been fully explored by the Commonwealth despite the strong reasons
presented post-trial for doing so. We implore the Governor to rectify this situation
before allowing Michael to be put to death.”
Michael has consistently maintained his innocence. All of the evidence
presented at trial supports his innocence except one piece -- a deoxyribonucleic acid
(“DNA") test. As discussed below, however, that evidence is now in grave doubt.
We did not become involved as Michael’s counsel until after his state
court remedies were exhausted and the time had come to pursue federal habeas corpus
relief. As of that point, no attorney for Michael had done anything to check the
accuracy of the critical DNA test introduced at trial in 1990 (the “1990 test”). Because
the physical evidence found at the crime scene was in the custody of the
Commonwealth, we did the only thing we could to double-check the 1990 test before
u Currently pending before the United States Supreme Court is a petition by
Michael for a writ of certiorari and an application for a stay of execution. We
nonetheless have filed this petition to avoid a last-minute plea to the Governor’s
Office. If the stay motion is decided favorably to Michael, we will notify the
Governor’s Office immediately.
filing a federal habeas petition -- we ran a new DNA test on Michael’s blood, the only
relevant DNA to which we had access.
We arranged with the Lifecodes Corporation in Stamford, Connecticut to
conduct this test (the “1995 test”) and then compared the results to those of the 1990
test on the crime scene evidence. (We replicated the 1990 test as closely as possible; in
fact Lifecodes was selected as the laboratory to do the test because it was capable of
using the same procedures as the laboratory that conducted the 1990 test.)” The results
were stunning: the DNA from Michael’s blood did not match the DNA extracted from
the 1990 crime scene evidence.
Why did Michael’s blood match the crime scene evidence in 1990 but
not in 1995? The most obvious explanation is that the 1995 test supports Michael’s
persistent claim of innocence and the 1990 test was flawed. The Attorney General’s
Office does not accept this explanation, however, and has argued in the federal habeas
corpus proceeding that the discrepancy between the two tests results from the two tests
having been run at different times, in different laboratories. Our experts disagree with
these arguments. Neither the federal district court nor the United States Court of
Appeals for the Fourth Circuit determined the reason for the conflict between the two
tests; instead, both federal courts held that a “battle of experts” was an insufficient
reason to grant a writ of habeas corpus.
z Ironically, the laboratory that conducted the 1990 test, the Tidewater Regional
Crimes Laboratory (which is available only for police use and therefore off
limits to us), no longer uses the same protocol used in 1990.
ig.
We respectfully submit that it would be irresponsible to execute Michael
before this “battle of experts” is resolved, especially when a clear and simple means to
resolving it exists -- a new test. In fact, Michael has been willing for some time to
address the Commonwealth’s arguments regarding the 1995 test: he authorized us to
request the crime scene evidence from the Commonwealth, so that a new test could be
run comparing the crime scene evidence and his blood at the same time, in the same
laboratory.
The Attorney General’s Office has consistently prevented such a test by
refusing us access to the crime scene evidence even though the test would not
significantly delay the execution (it would take approximately four weeks to complete
and, in fact, could have been run two years ago had the Attorney General made the
requisite material available when we first asked for it), will not cost:the Commonwealth
anything (we will pay for it), and, most importantly, will clear up the discrepancy
between the 1990 test and 1995 test. Thus, simply put, the issue for the Governor’s
Office is why it should not authorize a free test in order to eliminate any doubt
whatsoever about the 1990 test. We urge the Governor to order a new DNA test of the
crime scene evidence and Michael’s blood before Michael is executed. -
Furthermore, even if there were no new DNA evidence demonstrating
his innocence, Michael should not be executed. Rather, as one of the jurors from
Michael’s trial has stated in an affidavit accompanying this Petition, life without the
possibility of parole would be the more appropriate punishment for Michael.
Since word that the Commonwealth has set an execution date has spread,
there has been an outpouring of community support for Michael, not only from friends
and family, but from others who have known Michael throughout his life. A District
of Columbia corrections officer,” a junior high school principal,” the owner of a
beauty shop,” church choir members” -- people from all walks of life have written and
called to tell us that they do not believe that Michael should be executed. All state
their belief that Michael could not have committed these crimes. And all unanimously
describe Michael as a good father, a family man, a quiet man, a religious man, and a
peaceful man. Michaei’s conduct during incarceration also demonstrates that he is not
the type of person the Commonwealth should execute. His record is devoid of a single
instance of violent behavior. Indeed, there is nothing to suggest that he poses a future.
danger to others within the prison community.
The jury that determined Michael’s sentence did not have the option of
choosing life without the possibility of parole because Virginia did not offer that option
¥ Affidavit of Raleigh James (“Raleigh James Affidavit”), sworn to on Nov. 5,
1997, annexed hereto as Exh. 2.
od Affidavit of Dr. George Rutherford (“Rutherford Affidavit”), sworn to on Oct.
23, 1997, annexed hereto as Exh. 3.
9 ___Affidavit.of Gerald L. Harrington (“Harrington Affidavit"), sworn to on Oct.
20, 1997, annexed hereto as Exh. 4.
9 Affidavit of Rosemary Alexander (“Alexander Affidavit”), sworn to on Oct. 17,
1997, annexed hereto as Exh. 5; Affidavit of Daniel Harrison (“Harrison
Affidavit"), sworn to on Oct. 24, 1997, annexed hereto as Exh. 6.
4.
at the time of Michael’s trial. The Governor does. Thus, we respectfully urge the
Governor to consider that option.
A tragedy occurred in March of 1990; no one connected with Michael’s
defense forgets for one minute the terrible acts committed that evening. We simply do ,
not believe that justice will be served by executing Michael for that offense.
I.
THE EVIDENCE AGAINST MICHAEL WAS WEAK.
Michael was convicted on July 30, 1991 of the capital murder, robbery
and rape of Ann Borghesani and the attempted rape of Deborah Abel, two offenses
that, over the objection of the defense, had been joined for trial. As illustrated below,
the evidence supporting both crimes was extremely weak; Michael’s conviction rested
almost exclusively on the strength of the trial DNA evidence.
The Offenses
The Borghesani Murder
Ann Borghesani was expected at a birthday party being givén for her at
8:00 p.m. on the evening of March 31, 1990. She was still at her apartment when her
roommate left between 7:10 and 7:15 p.m. When Ms. Borghesani did not show up for
the birthday party, her friends decided to call the police. At 8:30 a.m. the next
morning, Ms. Borghesani’s body was found at the bottom of an outdoor stairwell of a
building that is located off a bike path in Arlington County, Virginia. A medical
examiner determined that Ms. Borghesani’s death was caused by multiple stab wounds.
There was no evidence presented at trial as to the specific time of death.
The Abel Assault
At approximately 7:10 p.m. on the evening of March 31, 1990, Deborah
Abel was riding her bicycle along the same bike path that passed by the building where
Ms. Borghesani’s body was found. While cycling at a fairly rapid pace, she made brief
eye contact with a man walking toward her. Seconds later, she was pushed from her
bicycle, forced to the ground, and jumped on from behind. Ms. Abel’s glasses were
knocked off her face when she was first attacked, and for the remainder of the attack
she was forced to lie on her stomach. She never saw the face of her assailant during
the attack. No weapon was used in the attack.
Shortly after 7:15 p.m., a passerby was bicycling along the same bike
path. The passerby, Mark Polemeni, noticed a man kneeling on the side of the bike
path “throw a punch to the ground.” Mr. Polemeni stopped, got off of his bicycle, and
chased after the man. The man ran away, with Mr. Polemeni chasing him. When the
man disappeared from sight, Mr. Polemeni returned to his bike, and saw, for the first
,
time, Ms. Abel.
Mr. Polemeni and Ms. Abel went together to call the police. Within a
short time, eight to ten police officers were at the bike path, along with a tracking dog.
More than one hour after the Abel incident, at least one police officer and the tracking
dog were still at the bike path investigating the scene.
Evidence Introduced to Link Michael to the Borghesani Murder
Traditional Evidence
Traditional evidence linking Michael to the Borghesani murder was
scant. Perhaps because of this, no arrest was made for the Borghesani murder for
nearly five months.
No eyewitness placed Michael at the crime scene. No murder weapon
was ever found. An awl found in Michael’s car at the time of his arrest -- which
Michael testified he used to remove his car radio -- was, according to the prosecution’s
medical examiner, “consistent” with the weapon used to inflict Ms. Borghesani’s stab
wounds. The same examiner testified, however, that no traces of blood or tissue were
found on the awl and that there was no sign that it had been used in an attack.
Furthermore, the examiner admitted that the murder weapon also could have been any
ordinary household item, such as a knife, scissors, nail, or sharpened screwdriver, and
that there was no indication that Michael’s awl was, in fact, the murder weapon.
Neither motive evidence nor evidence that Michael had any violent
history was introduced at trial. The best the prosecution could do on this score was
introduce evidence that, after Michael’s arrest, the officer who transported him to the
detention facility asked him: “What’s up?” and, according to the officer, Michael
stated: “The police are trying to frame me for a murder or something or a rape or
something.”
No witness testified that Michael had been seen with Ms. Borghesani
either on the night of her murder or at any other time. Other than a highly suspect
in-court identification by Ms. Abel, which was the basis for a grant of habeas corpus at
the federal district court level and will be discussed below, and the DNA evidence, the
prosecution did not present any evidence that Michael was anywhere near the bike path
on the evening of the murder.
Hair and Serology Evidence
At the time of his arrest, Michael voluntarily gave the police blood,
saliva and hair samples. The prosecution attempted to match these samples with hair
and semen samples found on Ms. Borghesani’s clothing and taken from her body.
The prosecution retained a hair expert to conduct tests on hairs found on
the victim and at the crime scene. That expert, called by the defense, testified that
three African-American pubic hairs found in Ms. Borghesani’s pubic area at the crime
scene could not have come from Michael or Ms. Borghesani. He also testified that he
could not identify Michael or Ms. Borghesani as the source of the other 29 hairs found
at the crime scene.
Serological analysis could only place Michael in a group comprised of
about 17 million people who could have contributed the semen found on
Ms. Borghesani’s pants. Another suspect whose blood was tested by the
Commonwealth also fell within that group.
8
DNA Evidence
Thus, the prosecution’s only direct evidence linking Michael to the
murder was DNA evidence, which was presented principally by Richard A. Guerrieri,
a forensic DNA analyst employed by the Commonwealth. Mr. Guerrieri testified that
he performed a Restriction Fragment Length Polymorphism (“RFLP”) analysis” on
stained areas of the victim’s pants and coat and vaginal swabs. (The tests on the pants
and coat stains ultimately did not yield any results because of insufficient DNA.)
Mr. Guerrieri also tested Michael’s blood. The DNA testing was conducted at the
Tidewater Regional Crimes Laboratory in Norfolk, Virginia (the “Tidewater Lab”) -- a
laboratory that at that time was not subject to accreditation or licensing requirements,
was not operated under uniform standards, and often did not conduct confirmatory
testing of initial test results.
Mr. Guerrieri compared the DNA in the crime scene evidence with the
DNA in Michael’s blood at four probes, the most discriminating of which was the
D2S44 probe. Based on an application of the Commonwealth’s procedures for
determining a “match,” Mr. Guerrieri testified that the DNA profile of the crime scene
evidence matched the DNA profile of Michael’s blood at all four probes, and
concluded that “the probability of randomly selecting an unrelated individual with the
DNA profile matching Michael’s was approximately one in forty million.”
y A brief description of DNA testing, RFLP analysis and the methods of
calculating the probability of a match is annexed as Exh. 7 hereto.
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Mr. Guerrieri admitted, however, that had the two samples not matched at any one of
the four probes, Michael would have been ruled out as the source of the DNA in the
crime scene evidence.
Dr. Ronald T. Acton, a molecular geneticist, and Dr. Laurence D.
Mueller, a population geneticist, testified as DNA experts on behalf of Michael.
Dr. Acton described problems inherent at that time in forensic DNA testing and
specific deficiencies in the Tidewater Lab’s testing procedures that could result in false
matches, which could not necessarily be detected from looking at the autoradiographs.
Drs. Acton and Mueller both testified that the population database used
by the Tidewater Lab understated the probability of a random match because, among
other reasons, it did not take into account the higher frequencies of random matches
within certain ethnic, racial and geographic subpopulations whose constituents tend to
have children with people in their own subpopulation. Drs. Acton and Mueller also
testified that the use of the product rule did not accurately reflect the true probability of
a random match because the assumptions underlying the use of the product rule -- that
the DNA fragments identified by the probes used in forensic DNA testing are
independent of each other -- had not been established, thereby resulting in artificially
low numbers for probabilities of matches.
Evidence Linking Michael to the Abel Attack
The Abel Identification
Immediately following her assault, Ms. Abel gave a police sketch artist a
detailed description of the man she had seen briefly on the bike path. Mr. Polemeni
likewise described the man he saw to police.
As shown in the chart below, Michael’s appearance at the time of his
arrest (according to police arrest records) differed substantially from the person
described by Ms. Abel and Mr. Polemeni:
Abel Polemeni
Contemporaneous Contemporaneous Michael at Time of
Description Description Attack
25-30 25-30 21
Height 5’9" to 5710” 5’9” to 5710" 5’6”
Weight | 190-200 195 152 j |
Build “large, stocky” “large, stocky” medium |
Face . | “no scars of any kind” | “no scars” visible facial scarring |
Hair “Afro” style “full head of hair” short, cropped
Complexion | medium = dark
See Satcher v. Netherland, 944 F. Supp. 1222, 1295 (E.D. Va. 1996), annexed hereto
as Exh. 8.
Over 15 months after the attack and eleven months after Michael’s
arrest, Ms. Abel and Mr. Polemeni were called in to view a police lineup that included
Michael. Immediately prior to the lineup, Ms. Abel and Mr. Polemeni reviewed the
-ll-
sketch of the assailant that they had helped the police prepare the day after the attack,
and, following their review, were told to choose one of the six people in the lineup
only if they were “absolutely sure” that he was the assailant. After viewing the line up
participants for an unlimited time, all of whom were asked to walk forward and back,
Ms. Abel identified “Number Two” in the line-up as her assailant. “Number Two” was
not Michael. Mr. Polemeni could not identify any of the six men in the lineup as the
man he saw on the night of the attack.
The trial commenced two weeks after the police lineup. During the two
days of jury selection, Michael, the only African-American man in the area, sat at the
defense table. Ms. Abel also sat through jury selection, fully aware that Michael was
the accused.
After the trial commenced, the prosecution called Ms. Abel to the
witness stand where she pointed to Michael as the person who had attacked her. The
defense immediately objected to Ms. Abel’s identification as “highly suggestive” and
one “that’s going to lead to misidentification” because it was “basically an in-court
show-up of one person.” The trial judge overruled the objection. On cross-
examination concerning Ms. Abel’s sudden ability to identify Michael, she stated that
“the way he walked” and “the way he shrugged his shoulders” in the courtroom
“remind[ed] her of that night.”
The only other evidence presented by the prosecution linking Michael to
the Abel assault was the evidence of the Borghesani offense, which the prosecution
+12-
claimed was committed by the same person because (i) Ms. Borghesani’s body was
found not far nl the site of the Abel attacks; and (ii) Ms. Borghesani was last seen
shortly after the Abel assault. However, because of the presence of police and search
dogs in the area of the Abel attack, it was unlikely that the Borghesani murder occurred
in that area before they left at approximately 8:30 p.m. Evidence was also introduced
that Ms. Borghesani’s and Ms. Abel’s purses were found in the same area frequented
by homeless people.
Judicial Proceedings
On direct appeal, a majority of the Virginia Supreme Court affirmed the
convictions and death sentence over the dissents of two justices. icher v.
Commonwealth, 421 S.E.2d 821 (Va. 1992), annexed hereto as Exh. 9. Thereafter,
the U.S. Supreme Court denied Michael’s petition for a writ of certiorari, Satcher v.
Virginia, 507 U.S. 933 (1993), and his petition for rehearing, 507 U.S. 1046 (1993).
Two weeks before the date scheduled for Michael’s execution, the
Circuit Court for Arlington County appointed counsel to represent Michael in state
habeas proceedings. Untrained and inexperienced in capital cases, Michael’s counsel
sought additional time to prepare a petition. That request was denied, and thereafter
Michael’s state habeas petition was summarily denied on the grounds that the
arguments raised in the petition -- including the argument that the joinder of the Abel
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and Borghesani offenses violated the U.S. Constitution -- had been determined
previously on direct appeal.
Because of an error by the Clerk’s office, Michael’s counsel was not
notified of the dismissal of the petition until after the time for filing a notice of appeal ,
had expired. Although the Circuit Court entered a new order dismissing Michael’s
petition so that Michael’s time to file his appeal would be revived, the Virginia
Supreme Court dismissed Michael’s appeal as untimely. Thus Michael was denied any
substantive appellate review of his state habeas petition. Michael’s pro se petition for a
writ of certiorari was denied by the U.S. Supreme Court. Satcher v. Netherland, 513
U.S. 1193 (1995).
Thereafter, with new counsel, Michael commenced federal habeas
corpus proceedings in the United States District Court for the Eastern District of
Virginia. On October 8, 1996, the District Court granted Michael’s petition,
concluding that the admission of the Abel in-court identification violated Michael’s
constitutional rights and had a highly prejudicial influence on the jury’s decision to
convict. That determination was reversed by the United States Court of Appeals for
the Fourth Circuit.
-14-
Il.
EXECUT ION CANNOT BE JUSTIFIED ON THE BASIS
OF THE FLAWED TRIAL DNA EVIDENCE.
Since his arrest, Michael has consistently maintained his innocence.
And, as explained above, a considerable amount of evidence supports his innocence.
For instance:
e A Commonwealth forensic expert testified that African-
American pubic hair removed from the pubic area of the
victim was neither the victim’s nor Michael’s.
e The murder weapon was never found. The awl found in
Michael’s car when he was arrested showed no traces of
having been used in a murder.
° Michael had no history of violent behavior. There was no
evidence that he had committed any prior violent acts.
There was no motive evidence whatsoever.
e The police sketches drawn immediately after the Abel
assault look nothing like Michael” and failed to help
either Ms. Abel or Mr. Polemeni identify Michael at a
neutral police lineup. Indeed, Ms. Abel identified
someone other than Michael at the lineup as her attacker,
and Mr. Polemeni could not identify anyone in the lineup
as the man he saw.
In fact, the only evidence that pointed to Michael as the murderer is the
1990 test performed by the Tidewater Lab. Until the federal habeas corpus stage of
es A copy of the police sketch is annexed hereto as Exh. 10. A picture provided
by Michael’s family taken within a few months of the Abel attack is annexed
hereto as Exh. 11. Clearly, the sketch is not of Michael.
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post-conviction proceedings, the Tidewater Lab’s test was the only DNA evidence in
the case. That has changed.
In preparation for the filing of Michael’s federal habeas corpus petition,
a new DNA test was run on Michael’s blood. The results of that test cast serious doubt
on Tidewater Lab’s test.
Specifically, on April 12, 1995, a sample of Michael’s blood was sent to
Lifecodes Corporation (“Lifecodes”), a DNA testing laboratory that has in the past
performed tests for the Commonwealth, with instructions to perform a DNA test using
the same method, probes and restriction enzyme used by the Tidewater Lab to conduct
the 1990 test. Because the Tidewater Lab’s 1990 testing procedures were based on
Lifecodes’ procedures, and because Lifecodes was equipped to conduct a new test using
those procedures, a retest by Lifecodes was the best and only way to replicate the
Tidewater Lab’s test.” (The Tidewater Lab is available only to the police and, in any
event, no longer uses the same procedures and protocols it used in 1990.) The sample
was sent to Lifecodes anonymously -- nothing was done (or could have been done) by
Michael or the defense team to affect the results of the 1995 test.
The results of the 1995 test fully support Michael’s claim of innocence.
Dr. Aimée Bakken, a molecular geneticist, analyzed the results. After comparing the
y Affidavit of Dr. Peter D’Eustachio (“D’Eustachio Affidavit"), sworn to on
November 28, 1997, § 6, annexed hereto as Exh. 12.
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Tidewater Lab’s measurements of the two bands for one of the DNA probes (the highly
discriminating D2s44 probe) with Lifecodes’ measurements of the two bands for the
same probe, Dr. Bakken concluded, based on the Tidewater Lab match criteria used by
the Commonwealth at trial, that the DNA from Michael’s recent blood sample did not
match the crime scene evidence.” In other words, the bands “fell outside (exceeded)
the +2.5% match criterion” and were not a “match” pursuant to the Tidewater Lab’s
own match criterion.” This is not a technicality -- as the Commonwealth’s expert
Mr. Guerrieri admitted at trial, no two DNA samples can be declared a match unless
the difference between the measurements falls within the applicable match window.
It is a fundamental tenet of forensic DNA testing that “[i]f there is a non-
match on one probe, it is irrelevant how many matches there are for other probes -- the
DNA samples could not have originated from the same source." Indeed,
Mr. Guerrieri, the Commonwealth’s forensic expert, confirmed at trial that a non-
match on any one probe would eliminate a suspect as the source of the sample.2”
Thus, the 1995 test eliminates Michael as the source of the semen evidence.
iy Affidavit of Dr. Aimée Bakken (“Bakken Affidavit"), sworn to on July 13,
1995, { 18, annexed hereto as Exh. 13.
ut Bakken Affidavit, { 18 (Exh. 13); D’Eustachio Affidavit, { 6 (Exh. 12).
a Affidavit of Laurence D. Mueller, sworn to on Oct. 27, 1995, 4 5, annexed
hereto as Exh. 14.
al Transcript of Trial, July 22, 1991, at 201-02, annexed hereto as-Exh. 15.
St7s
In response to the 1995 test, the Attorney General’s Office has not
disputed that the two bands for the D2S44 probe on the 1995 test, when compared to
the same bands on the 1990 test introduced at trial, fall outside the Tidewater Lab’s
match window. Moreover, none of the Commonwealth’s experts dispute that, had the ,
1995 test of Michael’s blood been introduced at trial rather than the test that was
conducted on Michael’s blood in 1990, a non-match would have been the result.
Instead, what they contest is the viability of comparing Lifecodes’ 1995 test to the
Tidewater Lab’s 1990 test.
On a scientific level, the arguments advanced by the Commonwealth’s
experts suffer from significant flaws. DNA tests performed at different laboratories at
different times are regularly compared in forensic DNA analysis. Indeed, every time
the DNA profile of an evidentiary sample is compared to a population database to
estimate the probability of that profile occurring in the general population, comparisons
are necessarily made between tests conducted at different times and in different
laboratories.”
On a practical level, whether or not such a comparison is scientifically
sound boils down to scientific judgments. In the judgment of Michael’s experts, such a
comparison is scientifically sound. In the judgment of the Commonwealth’s experts,
w D’Eustachio Affidavit, { 17 (Exh.12); Affidavit of Aimée Hayes Bakken ~
(‘Bakken Affidavit #2”), sworn to on Oct, 27, 1995, {{ 2-5, annexed hereto as
Exh. 16.
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such a comparison is not. However, at the end of the day, relying on expert judgments
is unnecessary hecaiise a better way to resolve this dispute exists -- conducting a new
DNA test on both the crime scene DNA and Michael’s blood at the same time and in
the same laboratory.”
At trial, the Commonwealth’s expert testified that insufficient DNA
remained for a new RFLP test. However, a new type of DNA test -- a Polymerase
Chain Reaction (“PCR”) test -- has been developed since Michael’s trial that can yield
conclusive results on even small, aged samples of genetic material that might not be
sufficient for RFLP testing.”
It should be noted (and is discussed in further detail in the accompanying
affidavit of Dr. Peter D’Eustachio) that the 1995 test is not the only reason to question
the 1990 test. In 1990, RFLP testing was relatively new and the people who did it
were relatively inexperienced. Vast improvements have occurred over the last seven
years.
Moreover, unexplained anomalies existed on the autoradiograph of the
1990 test of the D2S44 probe, the same probe where the non-match occurred in 1995.
aa D’Eustachio Affidavit, {{ 17-21 (Exh. 12).
al D’Eustachio Affidavit, | 18 (Exh. 12). PCR testing is quick. Complete results
could be obtained in a mere four weeks. Michael’s counsel are ready and
willing to pay for such testing. Dr. Edward Blake of Forensic Science
Associates in Richmond, California, has advised us that he is willing to perform
such testing, and Michael is willing to permit the Attorney General’s Office to
be present during the test and review Dr. Blake’s work product.
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Specifically, there should be a maximum of only two bands per DNA probe on the
autoradiograph; the D2S44 autoradiograph of the 1990 test, however, contained four
“unmatching extra bands” in the lane that purported to contain Michael’s blood.’
These bands were not reported and not sized by the Tidewater Lab in analyzing the
results of the 1990 test. According to Drs. Bakken and D’Eustachio, appropriate
procedure would have required the Tidewater Lab to report and explain these extra
bands. The Tidewater Lab’s failure to do so casts independent doubt on the 1990
test.”
‘ For the past two years, Michael has been trying without success to
obtain access to the crime scene evidence to determine whether enough of the evidence
remains for additional DNA testing. However, the Attorney General’s Office has
steadfastly refused to grant Michael and his attorneys access to such evidence. Thus,
we have never been able to address directly the criticisms of the 1995 test made by the
Attorney General’s Office’s experts or the questions raised by our experts concerning
the anomalies in the 1990 test by retesting Michael’s blood and the crime scene samples
in the same laboratory, at the same time.
* * *
Bakken Affidavit, 4 11-14 (Exh. 13).
Ww Bakken Affidavit, § 16 (Exh. 13).
i -Bakken Affidavit, 44 15-17 (Exh..13); D’Eustachio Affidavit, { 16 (Exh. 12).
The Attorney General’s steadfast refusal to release any remaining
forensic evince for independent testing is deeply troubling. If the Attorney General’s
Office is convinced of Michael’s guilt, one would think it would welcome further DNA
testing. We respectfully ask the Governor to intervene and require any remaining ,
forensic evidence to be released for further testing.”
Ul.
EVEN IF MICHAEL WERE NOT INNOCENT,
LIFE WITHOUT PAROLE WOULD BE A MORE
APPROPRIATE SENTENCE FOR HIM.
When the jury met to consider the appropriate sentence for Michael, it
was not given the option of life imprisonment without parole because, in 1990,
Virginia did not provide for such asentence, Thus, the jury, which had already
determined that Michael had committed a heinous murder, had only one way to keep
a The 1996 National Research Council’s Committee on DNA Forensic Science
strongly urges that such a retest be allowed:
A wrongly accused person’s best insurance against the possibility of
being falsely incriminated is the opportunity to have the testing repeated.
Such an opportunity should be provided whenever possible. As we have
previously noted, retesting provides an opportunity to identify and
correct any errors that might have been made during the course of
analysis.
National Research Council, Committee on DNA Forensic Science: An Update,
The Evaluation of Forensic DNA Evidence, at 87 (1996).
221s
him off the streets - a sentence of death.2” One of the jurors who sat on the jury has
stated that, had life without parole been an option, she would have voted for it instead
of a death sentence. Two others have stated that they would have seriously considered
the option of life without parole if it had existed.
The Governor has the option to commute Michael’s death sentence to
life in prison without parole. We respectfully submit that, regardless of the new DNA
test or its results, the Governor should commute Michael’s sentence.
That this issue posed a problem for the jurors is evident from the transcripts of
the sentencing hearing. See Trial Transcript, July 31, 1991, at 98-106, annexed
hereto as Exh. 17. .
A recent poll conducted by Virginia Polytechnic Institute shows that Virginians
favor life without the possibility of parole over a death sentence. See Quality of
Life in Virginia Poll, Center for Survey Research at Virginia Tech (1997).
Polls from other states confirm that support for the death penalty dwindles to a
minority when the public is given the option to choose between death and life
without the possibility of parole. See, e.g., Courier Journal, Kentucky
Execution Re-opens Life-Without Parole Debate, Sunday, July 13, 1997, at 1;
Buckeye State Poll (Ohio State Univ. College of Social and Behavioral
Sciences, Survey Research Unit) (for a copy, contact Drs. Erik Stewart and
Paul Lavrakas at (614) 292-6671.); William Bowers et al., A New Look at
Publi ini ital i nt: What Citi id i er,
22 Am. J. Crim. L. 77 (Fall 1994); see also Brown v. Texas, 66 U.S.L.W.
3295 (U.S. Oct. 20, 1997) (noting that poll data shows that support for the
death penalty dropped when life without the possibility of parole was presented
as an alternative).
-22-
Michael Is An Appropriate Candidate for Clemency
A Devoted Family Man and Friend
As described by his family, friends, teachers, religious leaders, and mere
acquaintances, Michael is a good person, a responsible person, and a caring person.
The murder of Ms. Borghesani -- if Michael committed it -- would be a horrible
aberration.
Since Michael’s execution date was set, we have been inundated with
mail and telephone calls voicing support for him. Most impressive is the unanimity of
these people’s descriptions of Michael. He is consistently depicted as quiet, a
peacemaker, responsible, and a devoted father and Christian. The stories told by his
family, friends and acquaintances all illustrate these traits. For instance, Gloria
Williams, Michael’s companion and the mother of his two young sons, Mike, age 9,
and Mark, age 7, says:
Michael has always been concerned about his sons. Even from
prison, he still calls me about once or twice a week and talks to
them on the phone at least once a week. He worries about what
they have been doing, and I send him their report cards and
progress sheets from school. He talks to them about school work
and about acting right in school. When little Mike was born, he
and Michael were just like twins. Michael would wake little
Mike when he got home from work just to spend some time with
him (Michael had a night job then). I have never had to get up in
the middle of the night; Michael always took care of them. . . .
-23-
Michael was such a good father ~- he was always looking after
those boys, taking them everywhere he went.
Michael’s junior high school principal, Dr. George Rutherford,
describes him as “well-mannered and respectful.” He states that Michael was well-liked
by the other children and that his great passion was the marching band, for which he
would practice before and after school. Dr. Rutherford also says, “I have seen a lot of
kids, and am a pretty good judge of character. I would have no problem believing that
some of the students I have could commit the kind of crime Michael was accused of,
but Michael is not even capable of doing that."
These themes of family devotion and peaceful behavior.consistently are
mentioned when people talk about Michael. Even before he had his own children,
Michael’s dedication to his parents, siblings and other relatives has always been
profound. Michael comes from a large, closely knit family, and he is very close to
everyone in his extended family. Even while in prison, he has been very concerned for
and supportive of them.’ As one aunt says, “Michael was the kind of kid you could
trust to do something for you over all the other kids in the family, even over [your]
a Affidavit of Gloria Williams (“Williams Affidavit’), sworn to on Nov. 26,
1997, annexed hereto as Exh. 1.
2 Rutherford Affidavit (Exh. 3).
cal Williams Affidavit (Exh. 1).
own kids." His godmother describes him as lovable and the kind of person who
would help anybody out -- and would refuse to accept any money for doing so.”
Other relatives say, “You would never see Michael fighting or horseplaying. In fact, if
there was anybody in the family you would have picked out as a Christian -- a preacher
-- it would have been Michael. . . . [H]e was always willing to help you.”
Among his neighbors, Michael was known for being well-mannered and
quiet. And Michael was also well known in his neighborhood for his love of basketball
(which he frequently played with the neighborhood kids), other sports, picnics, and his
family.” Michael’s friends consistently describe him as a good friend: someone who
would offer you a place to sleep if you had a problem at home, who would stick up for
you, who would help you carry your groceries, or who would do any favor asked of
him.”
a Affidavit of Annie Satcher (“Annie Satcher Affidavit”), sworn to on Oct. 7,
1997, annexed hereto as Exh. 18.
2 Alexander Affidavit (Exh. 5); see also Affidavit of Bobbi Pruitt, sworn to on
Nov. 13, 1997, annexed hereto as Exh. 19.
ae Affidavit of Gary and Faye Satcher, sworn to on Oct. 23, 1997, annexed hereto
as Exh. 20.
2 Affidavit of Deidre Hamilton, sworn to on Oct. 16, 1997, annexed hereto as
Exh. 21; Harrington Affidavit (Exh. 4); Raleigh James Affidavit (Exh. 2);
Affidavit of Thelma L. Kelly, sworn to Oct. 24, 1997, annexed hereto as Exh.
22.
ay Affidavit of Reginald James (“Reginald James Affidavit”), sworn to on Oct. 31,
(continued...)
25%
A Non-Violent Man
According to those who know him, Michael has never displayed violent
behavior. His one pre-1990 arrest was a drug-related offense. Prior to 1990, he had
no history of any other criminal conduct, violent or otherwise.2” His family and
friends have never seen any violent side to him; no one even can remember him
fighting with his-siblings as a child. What many do remember is that while growing
up, Michael was the calm one, the peacemaker.” In fact, Michael’s friends say that he
is, and always has been, extremely hard to provoke.
Michael’s behavior in prison is consistent with the descriptions we have
received of his character prior to 1990. Raleigh James, a neighbor who also was a
prison guard at Lorton when Michael was incarcerated there for his drug possession
offense, says that while at Lorton, Michael “was very quiet, stayed to himself, and
didn’t bother anybody. He was no trouble."
2(.. continued)
1997, annexed hereto as Exh. 23; Affidavit of Robert Scott (“Scott Affidavit”),
sworn to on Nov. 4, 1997, annexed hereto as Exh. 24.
au On August 18, 1990, Michael was arrested on charges relating to attempted
assaults of women on a different bike path. Michael has never been tried for,
or convicted of, these offenses.
22 Annie Satcher Affidavit (Exh. 18).
a Reginald James Affidavit (Exh. 23); Scott Affidavit (Exh. 24).
3 ‘Raleigh James Affidavit (Exh. 2).
Since entering prison, Michael has done nothing to indicate that he must
or should be ae death. Rather, he has been a model prisoner. There is no evidence
of fighting or violence. His main interests have been his family, as difficult as that has
been from inside a prison, and his church. In devoting himself to those interests, ,
Michael has shown that his life is precisely as it was before March 1990.
A Church-Going Man
One additional fact about Michael is. mentioned over and over again by
almost everyone who knows him: his dedication to God and the church. Michael was
brought up in the New Macedonia Baptist Church in Southeast Washington, a large
church with numerous active members. Michael did not just passively attend church,
he actively participated in it: he sang with the church choir from the age of 6 and
belonged to the Junior Usher Board.”
Michael remains committed to God. At trial, Kenneth Butler, the prison
minister, testified that Michael attended his bible classes regularly, and that, in his 18
years of religious counseling at prisons, Michael was one of only three people who had
ever requested a copy of the minister’s bible study notes. Mr. Butler also testified that
x Harrison Affidavit (Exh. 6); Affidavit of Elease Pugh, sworn to on Oct. 22,
1997, annexed hereto as Exh. 25; Letter of Reverend Walls, Nov. 7, 1977,
annexed hereto as Exh. 36.
297
Michael was the “meekest, mildest, quietest, self-effacing person that I have ever seen
in jail."
"A Man Whose Cause Has Attracted People From All Over
In addition to the affidavits described above,” we have received a
number of petitions collected by his family and letters from people who live out of state
-- all who ask that Michael be given a chance to prove his innocence.” Some of the
people who wrote letters can barely read and write, yet they all felt compelled to do
whatever they could on Michael’s behalf.
Michael’s Jury Would Have Seriously Considered Life Without Parole
Jurors who sentenced Michael to death would seriously have considered
the alternative of life in prison without parole had they had the opportunity to do so.
Three jurors have submitted affidavits stating as much. Moreover, one juror, Rubye
Baumgardner, has sworn in an affidavit that she would have voted for life
imprisonment without parole had she been given the option. This is all the more
aw Transcript of Trial, July 31, 1991, at 54, annexed hereto as Exh. 26.
37 In addition to the affidavits cited in this Petition, a number of additional
affidavits are annexed hereto as Exhs. 27 to 35.
a The letters are annexed hereto as Exh. 37; the petitions are annexed hereto as
Exh. 38.
37 See Exhibits 39 through 41 annexed hereto.
al Affidavit of Rubye Baumgardner, sworn to on Nov. 4, 1997, annexed hereto as
(continued...)
-28-
significant because, to impose the death penalty, the jury had to be unanimous;
Ms. Baumgardner’s affidavit creates a substantial question as to whether such
unanimity would have been possible among the jurors. Indeed, on the basis of this
affidavit, it is likely that the jury would have decided that life without the possibility of
parole was more appropriate for Michael.
* * *
We implore the Governor to consider and grant Michael the option that
the jury did not have available to it to consider -- life imprisonment without the
possibility of parole.
Iv.
ERRORS AT MICHAEL’S TRIAL
RENDER THE JURY’S VERDICT UNRELIABLE.
As discussed above, without the DNA evidence, the prosecution’s case
against Michael was almost non-existent, and now, even that DNA evidence has been
called into question, further casting doubt on his conviction. The manner in which
Michael’s trial was conducted only creates further discomfort regarding his conviction.
/(.. continued)
Exh. 41.
-29-
The Improper Joinder of Two Different Crimes
Michael was indicted for the murder of Ms. Borghesani on
November 19, 1990. On April 15, 1991 -- some five months after the Borghesani
indictments were returned -- the prosecution sought and was granted an indictment
against Michael in connection with the Abel attack. Nothing had prevented the
Commonwealth from obtaining the Abel indictment sooner; in fact, it had collected all
evidence relating to the Abel offense before it indicted Michael for the Borghesani
offense.
The trial court permitted the joinder of the two crimes for trial over the
objection of the defense. Thus, instead of attempting to convince the jury that a man
with no violent past should be sentenced to death because of the results of a DNA test -
- a proposition the prosecution apparently found daunting -- the prosecution was able to
cumulate weak evidence of two crimes, thereby making the evidence of each crime
appear stronger than it really was.
Of course, the charges should never have been joined together in one
trial because the evidence did not support the notion that these crimes were at all
connected.*!’ In fact, the dissenting Justices of the Virginia Supreme Court -- the only
a For example, the evidence connecting the offenses consisted of the fact that
Ms. Abel was assaulted and Ms. Borghesani was murdered within an :
approximate twelve-hour period; Ms. Abel’s assault occurred somewhere in the
same general vicinity of where Ms. Borghesani’s body was found; Ms. Abel’s
(continued...)
court ever to reach the merits of the joinder issue“ — wrote that the joinder of the two
offenses was “so unfair and unjust that it constitute[d] a denial of Satcher’s rights to due
process of law guaranteed by the federal constitution and the Constitution of Virginia.”
Satcher v. Commonwealth, 421 S.E.2d 821, 850-51 (Va. 1992). The dissenting
Justices further pointed out that the only reason for the prosecution to join the two
offenses was “to show the character of the accused and the accused’s disposition to
commit offenses similar to those charged.” Id. at 850.
The impropriety and prejudice of the joinder has not been reviewed since
the Virginia Supreme Court’s decision due to legal technicalities. Thus, Michael,
through no fault of his own, has been denied the very protection that federal habeas
corpus review is intended to provide.
4... continued)
and Ms. Borghesani’s handbags were both found six days later in a parking lot
inhabited by homeless people (although that assertion is contradicted by the trial
testimony of one of the Arlington County Police Department detectives); and
Ms. Borghesani was raped and Ms. Abel’s assailant pulled her pants down. The
fact that the police were still investigating the area in which the Abel assault
occurred up to one hour after the assault strongly suggests that they did not
occur at the same time. And the modus operandi of the two offenses was quite
different, in that Ms. Abel’s assailant brandished no weapon, while
Ms. Borghesani was stabbed.
The state habeas court declined to consider the issue on the ground that it had
been decided previously on direct appeal; this decision was never reviewed on
appeal because of the “timeliness” dismissal. The federal courts found that the
issue had not been presented on direct appeal (a conclusion completely contrary
to the state habeas court’s decision that the issue had been decided previously)
and therefore could not be presented in federal court.
Bis
The Abel In-Court Identification
The most obvious evidentiary consequence of the joinder of the Abel
offense to the Borghesani prosecution is that it permitted the prosecution to put
Ms. Abel on the stand to identify Michael as her assailant. This identification,
however, was so unreliable that it should never have been admitted into evidence. As
described earlier, the in-court identification was contradicted by Ms. Abel’s
identification of someone else as her assailant at a non-suggestive lineup two weeks
earlier. Moreover, Michael’s appearance vastly differed from the description of the
assailant given by Ms. Abel.and Mr. Polemeni on the day after the attack.
As the District Court observed:
Only one factor varied between the pre-trial lineup and Ms.
Abel’s in-court identification of Satcher -- the circumstances of
confrontation. Whereas the setting of the pre-trial lineup was
neutral, the confrontation preceding the in-court identification
5.
was highly suggestive. It was only after Michael was effectively
singled-out for prosecution by the government and the police that
Abel could “identify” him as her assailant with “certainty.”
° * * *
It simply cannot be ignored that, during a neutral pre-trial lineup
when Satcher stood next to four other similarly-clad black men,
Abel selected someone other than Satcher. On this record, the
Court concludes that Abel’s identification of Satcher was
determined by the circumstances of his presentment to her as her
assailant in the formal judicial process, and not by her
observation of him during the attack upon her.
Satcher v. Netherland, 944 F. Supp. 1222, 1296-97 & n.63 (E.D. Va. 1996).*
For more than a quarter century, suggestive in-court identifications have
been barred by the United States Supreme Court and the Fourth Circuit Court of
Appeals as unconstitutional because they are unreliable and, consequently, have the
power to lead to the conviction of innocent men. See, e.g., United States v. Wade,
388 U.S. 218, 228-29 (1967) (“The vagaries of eyewitness identification are well
known; the annals of criminal law are rife with instances of mistaken identification.”);
Smith v. Paderick, 519 F.2d 70, 75 (4th Cir.), cert. denied, 423 U.S. 935 (1975)
(“Positive identification testimony is the most dangerous evidence known to the law....
[P]ressured to solve a heinous crime, often conscious of a duty to do so, and eager to
#/ ‘The Court of Appeals for the Fourth Circuit did not disagree with this analysis;
indeed, that court said that this issue “merits serious consideration.” Satcher v.
Pruett, 126 F.3d 561, at 566 (4th Cir. 1997), annexed hereto as Exh. 42.
Rather, the Court of Appeals differed with the District Court only over how
harmful the error was.
-33-
be of assistance, a potential witness may be readily receptive to subtle, even
circumstantial, insitnnatt that the person viewed is the culprit.”).
Ina very real sense, the Abel identification evidence was the linchpin of
the prosecution’s case against Michael. Without it, the prosecution had only the
“scientific” evidence -- which was hotly contested at trial and which later testing has
confirmed was flawed. And contrary to the Fourth Circuit’s determination that the
admission of the identification was harmless, all indications are that at the time of trial,
the prosecution itself considered the Abel identification quite harmful to Michael. Why
else would it have gone to such great fengiie to get the Abel identification into
evidence, including joining the Abel offense to the Borghesani prosecution; conducting
the lineup two weeks before trial; and putting Ms. Abel on the stand even after she
could not identify Michael at the lineup. Indeed, what better illustrates the importance
of the identification than the prosecution’s judgment that it was better to have Ms. Abel
identify Michael at trial even though her testimony would elicit cross-examination
about her lineup non-identification, than not to have any identification at all.
As one final example of the many questionable and unfair rulings at
trial, we note that the trial court even refused to dismiss for cause prospective juror
Herbert Middle, a man who was “friendly” with the police officers that investigated
Michael, had spoken with those officers about the Borghesani investigation, and
admitted that these “friendships” would interfere with his ability to render a fair and
impartial verdict. Specifically, Mr. Middle said, among other things, “There’s a
possibility, like I said, I might be swayed to their [the police’s] side of the story
automatically. With a hearing of this type, it might be best ‘to —I’d like to be excused
from it as far as a fair draw on it if possible."
We could point to many other examples of questionable and unfair
rulings at trial, all of which undermine confidence in its outcome. In sum, Michael’s
trial was so rife with significant error that the jury’s “guilty” verdict cannot be trusted.
“/ ‘Franscript of Trial, July 17, 1991, at 171-72, 182, 199-200, annexed hereto as
Exh. 43.
~35-
CONCLUSION
The Governor has an opportunity to correct two grievous errors.
First, the new DNA evidence developed by Michael’s counsel since his
conviction casts substantial doubt on the trial DNA evidence. Had this state of doubt
existed at trial, Michael would not have been convicted because the DNA evidence was
the critical evidence that identified him as Ms. Borghesani’s murderer. The Governor
can address this situation quite easily simply by providing Michael access to whatever
crime scene evidence still exists so that the 1990 test can be redone. If the retest
proves a non-match, the Commonwealth will know it has the wrong man in prison and
a great injustice will be avoided. If the new test turns out to be a match, a matter that
can be determined within weeks, the Governor can consider the second question
presented by Michael’s application.
Second, at the time of Michael’s 1990 conviction, his jury did not have
the option of sentencing Michael to life without parole. One juror has come forward
with an affidavit asserting that, had the jury had the option of life without parole, she
would have chosen it over a death sentence. Two other jurors have stated that they
would have seriously considered such a sentence had it been available. The Governor
has the power to heed these jurors and sentence Michael to a life behind bars, a life
where he can continue, in a limited way, to be a father to his children, a son to his
parents, and a brother and friend to those who love him. His life before 1990 and his
behavior in prison since his conviction warrant this sentence.
Lori S. Sherman
Marc De Leeuw
James V. Masella
Christine Monterosso
John C. Stellabotte
Elizabeth Carroll,
Of Counsel.
Respectfully submitted,
/
Lee Ann Anderson McCall Neal
1701 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 956-7695
John L: Hardiman
125 Broad Street
New York, New York 10004
(212) 558-4070
Counsel for Michael Charles Satcher
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