All right, we're good to go.
Could you introduce yourself, tell me what you're doing now, kind of how you got to
to where we are?
My name is Jerry Serkin.
I now am sort of sliding into retirement.
And I have been in private practice again, sort of part times inside left the federal's
federal office about five years ago.
And I came to Virginia to when I graduated law school.
I had been here before for graduate school.
I came back in 1976 to say I'm here at death penalty was passed.
I had no real consciousness of the death penalty because I went to law school in college
in Boston where it was a non-issue.
I was living here and sort of in fairly short order was confronted with it.
It was asked to be local counsel for B.F.R.L.D.C.R.L.D.
for doing James Riley's Havies corpus.
And that was my introduction.
And when that was over, basically I decided I didn't want to do anything more to do with
it.
It lasted not a very long time.
And then Marie Geens asked me to go to a conference that's run in Northern Virginia by the
NAACP Legal Defense Fund called the Early Conference, which is a national invitation only
conference for death penalty litigators.
So the poor shape of representation in Virginia is evidenced by the fact that I was invited
to go.
So there's a conference where the people who are there and the people who are presenting
are the best capillaries in the country.
It's Steve Brightes and David Brooks and John Looms and goes on and on.
So Marie asked me to go to it and I did.
And coming out of that, there was an execution scheduled for a month after the conference.
It was in the summer.
And there was nobody.
Marie wanted a successor petition done for Alton Way.
And she recruited a group from there, basically people out of South Carolina, to come and do
a successor petition.
And they took over my office completely and prepared over a course of a month, maybe six weeks.
And I'd never seen anything like it just in terms of the work that was done and what
they put together in an incredibly short period of time to represent him and try to get a
state of execution.
And I didn't really fail, but it was kind of addictive.
It was, I've been in private practice at that point and I've never seen anything like
that.
And, you know, it was quite extraordinary.
A year later Marie had to go back.
I went again and there was another execution scheduled for right after that.
I had an indirect petition.
And another team was put together to do a successor, took over my office once again and
I went through that with them and by then I was hooked.
So then I started doing Higgis cases.
I did either as sole counsel or as a co-counsel.
Total I think of about 14 of them, state prisoners.
Beginning in 1996 I was appointed to a federal capital trial enrichment group called the
Poison Clan, which is a drug cartel with a number of murders in it and about four
capital defense being tried at the same time.
I did that trial and then I started, that was the beginning of my then doing federal capital
trial work, which I found a lot more satisfying because winning Higgis Corpus cases in Virginia
was basically impossible.
Virginia was the perfect storm for capital litigation because we had a system that was designed
to prevent there being legal issues well designed.
I mean, give credit to the people who drew up a statute, it was very little you could
challenge.
Basically, you could only win in Virginia at trial in the US Supreme Court and clemency
because the Virginia Supreme Court never gave relief on direct appeal virtually never.
They never gave relief in Higgis Corpus.
The federal court made the most conservative court of appeals back then of an eighth of
what circuit was terrible.
Occasionally you could win in the district court but it would always get taken away from
you in the court of appeals.
So there were very few victories that actually stuck.
So it was an incredibly frustrating experience because it always ended badly.
What happened was that early on there were a lot of bad decisions, what I consider bad
decisions in the federal courts that sort of locked in the Virginia system such that there
was nothing to challenge.
So the whole statute was based on the fact that you had a couple of categories to narrow
who was eligible for death but the Virginia Supreme Court made some of the meaningless like
vialists became this thing where all you had to do was more than the minimum force necessary
to commit the act of murder that was considered vialists.
So almost every murder qualified.
Future dangerousness which nobody knows what the hell that means.
I mean everybody just guessed that.
They put an expert on the stand say I just going to kill again.
And so the system was designed to not allow for appeals.
The statute was and the Virginia Supreme Court just narrowed it to the point that there
were almost no challenges there.
So it was really hard.
It was you couldn't win in effect assistance of counsel cases here.
They just hardly ever happened.
The only ones I think the more one were actually one in the US Supreme Court.
There were a couple of those.
So that was a very frustrating experience and moving on to doing trial work was much different.
The federal court was much different.
The federal system was sort of much less just throw the stuff in a pot and see what happens.
It was much more structured and there was a lot more litigation work that could be done.
So it sort of fit my temperament a lot better.
And had a lot of success.
I had no death sentences hand down in any of my trials until actually the last one which
was in Louisiana.
And where you have very Catholic jury pool and what I found was that they very much listened
to the public when it comes to abortion and they don't listen to it at all when it comes
to capital punishment.
And so it was, so that was not a great way to hand, but many of it.
But doing the capital trials was very satisfying.
I'm going to switch up the battery on the sink.
So I'm going to die just now.
Thank you for that.
I think, see now I don't know how to take this battery out.
I think next question, when I get the slight back on, is going to maybe jump ahead chronologically
a little bit.
And then we'll go back.
It's been a pretty incredible uphill battle to get from.
You can't win a heaviest case to abolition, right?
So what your experience has been in that uphill battle, getting to what's coming on.
Over the last couple of decades, what it's been like to see this state go from what you're
describing is basically impossible to succeed to now.
We don't have the death penalty anymore.
So cameras on.
If you want to just go ahead and make a sure.
So I think it's a fairly complex story, which we'll take time for it to be thoughtfully
put together, got a lot of moving parts.
I think one of the, the death penalty was dying in Virginia, the zone away.
Nobody had been put on death for over 10 years.
From a situation where we were executing as many I think as, as maybe 12 people a year
in the 80s and early 90s to no executions for several years.
No one being put on death row for 10 years.
Two people being on three people being on death row two at the end.
It was dying of its own weight.
And I think a lot of things contributed to that.
One of them was the education of the trial bar, which for which an awful lot of the credit
goes to David Brock and his program at Washington Lee Law School, the Capitol clearinghouse.
And the people who proceeded David, Bill Gimer and Roger Brutes.
But David really turned that program into something that was so powerful and put on trainings
every year through the VBA where all the Capitol litigators came and they learned a lot about
trying capital cases.
And most importantly, they learned not to try capital cases to believe them out and to
not roll the dice of trial.
And so the road just started disappearing.
The creation of Capitol Defender Offices, you know, around the state.
In Central Virginia, we had David Brock who was a great trial lawyer running that office
for a while.
He never went to trial once.
Now that's not because he was necessarily pleading now.
But because prosecutors do want to go up against them and have to deal with his aggressive
form of litigation.
So they would drop the Capitol charge in order to get David off the case.
And so the whole Central Virginia wasn't even having trials in capital cases.
And great work was being done elsewhere at other offices.
And that sort of changed the trajectory and just weren't putting people on the road.
So it sort of became meaningless.
The case of Earl Washington being exonerated who was my client, the second chair was really
led by Bob Hall of the Northern Virginia.
Joe Gerrattano, who was client of mine, wasn't fully exonerated but received clemency based
on doubts about his guilt.
And then it was given life with the possibility of parole, ultimately got parole.
And now thanks to Steve Dorfett, but now is off parole.
So those sorts of cases changed the consciousness.
So people had doubts about it.
The issue of race had become really sort of forefront of people's minds.
And I think it's a phenomenon actually not just in the South.
I mean, it's an issue in Pennsylvania.
It's an issue in California.
It's an issue everywhere.
The racism that infects death penalty is true.
It's maybe worse in the South, I don't know, but it infects it all over.
And so what happened, I think that all of those things came together.
And quite frankly, I think the last straw was the government.
And the fact that he, that we got Dick Sasslaw, the inventor of the Virginia death penalty
who sponsored the original bill to vote for abolition was a direct result, I believe.
I don't think there could be any question of governor Northam saying, I want this and
saying it publicly.
And then some Democrats not wanting, no matter how imbibilant they may have been on
the subject, not wanting to turn them down.
And I think quite frankly, Northam's blackface scandal contributed to it because he became
very conscious of race issues and the death penalty is a race issue.
And so he got very strongly behind it.
He announced it publicly.
I mean, that was the key.
He wasn't just doing behind the scenes, but he announced the whole commonwealth that
this is what I want.
And that sort of forced the issue.
And he didn't pass by much.
So I think that's the difference.
Sure.
So you touched a little bit in a number of different ways.
How the issue of race is inextricably intertwined with the death penalty.
And then even going back to your time as a federal public defender, how have you seen the
death penalty and the issue of race?
You know, you spoke about how it kind of came to the forefront, people's minds more.
Do you think that there was like intentional work being done by, you know, not just VADP,
but people involved in the abolition movement, really trying to encourage people to see that
connection.
Well, I think they've been doing it for a long time.
I mean, the issue was litigated, you know, up to the Supreme Court.
Many years ago, just based on the statistics of how much of a role race played.
And I think litigators, activists have been pushing that story for a long time.
And I think it just sort of caught hold.
And let's face it, we've been going through a reckoning with race generally in society
and in the criminal justice system.
And so it was there.
And I think you got a boost from the general consciousness about it.
So I don't know whether everyone thinks of it in those terms, but I think that sort of
the sentiment is growing over time.
Sure.
And this may not even be something that you think is, you know, even if you don't want
to answer this question, you may not know, really.
But do you see kind of the abolition of the death penalty as a catalyst for criminal justice
reform in mass?
Or do you think it's just more of a byproduct of reform that's already going to go?
Well, I think it goes both ways.
But no, but I think the move towards abolition was happening before I think we became really
focused on criminal justice reform more broadly.
So I think in many ways it was an impetus for the rest of the country because it is the
most dramatic example of the problem.
And it has the most of your consequences that I think it was a catalyst.
On the other hand, it also benefited just from the whole over, you know, the mass incarceration
movement.
They all start interacting with each other.
Sure.
All right.
So it's a gears a little bit.
Can you just talk about how you kind of first got involved with the VADP?
Well, like I said, I was on, I don't remember who asked me to be on the board, originally
the first board.
I mean, I was doing, I was doing litigation.
I was very public about it.
The briola case was a notorious one.
It was a lot of media coverage of it.
I didn't shy away from it.
So I was sort of known that I was doing the work.
And that would have been going on for six or seven years, I think, before VADP became
an issue.
So one of the cases that was litigated was a case about representation for death throw inmates.
There was borrow, pro-say by Joe Gerrattano, that resulted quite practically directly in
the saving of Earl Washington, who came within nine days to be an execute.
So Joe brought this lawsuit and I was local counsel for a New York form, Paul Weiss, Rifkin
Morton, and Garrison, to litigate that case.
And ultimately, are you decayed?
We won in the district court, won in the fourth circuit, and I ended up arguing in the spring
court and we lost.
But as a result of that, Virginia, when we won in the district court, the judge ordered
the state to put into place a system to avoid sort of having to litigate relief.
And so a statute was adopted, which still exists.
It does require the appointment of counsel for Hibis Corpse.
And that was a direct result of the victory in the district court in Gerrattano.
And even though we ultimately lost, it wasn't dismantled because of that.
It was in place and they were hardly going to just say, we're going to take it back.
So the system was created because of the lawsuit and the system survived the loss of the
ultimately in the spring court.
So that's how we ended up with having representation.
Sure.
All right.
So you've mentioned you've got...
Oh, but you would ask me about involvement in the VADP.
So at that point, so I didn't get that didn't lead to my VADP involvement then.
I was on the...
That maybe led...
Some of that led to my involvement in the original.
Gerrattano was decided in 1988 in the US spring court.
89 was the beginning of the first version of VADP.
So I was involved then.
Then it moved to Zald.
I was not involved with it after that until my directly involved, not until my recent
return to the board.
Sure.
So you've mentioned you've got pretty extensive experience fighting the death penalty for a
number of decades now.
Do you have one or multiple significant memories, events that stick out kind of in that journey?
Sure.
So there are a lot.
I think the most poignant ones are sitting with Gerrattano in the death house in the
penitentiary.
The penitentiary was being dismantled and all the prisoners had been moved out, but the
electric chair was still there in what was called sea building, which was a dungeon,
no other way to describe it.
And the penitentiary was, well, it was so deserted.
And it was to describe it as sort of spooky, just doesn't do it.
Justice is this old, old building that's kind of falling apart.
And it's when you would walk into the main yard, there were no lights anywhere.
And it was just surreal.
And then you walked down into the death house.
And so all there was, Joe was the only one down there who was waiting to be executed.
We were given a clemency offer by Governor Wilder that was a little complicated we wanted
and we wanted the possibility of a new trial form.
And so it was this sort of complicated offer of clemency that he gave us.
And Marie and I, Marie Dean and I went to talk to Joe about it.
And all there was in the death house was a row of cells on each side.
And then the execution chamber and an anti-room to the execution chamber.
And we met at, there was this table in the anti-room and we met with Joe around the table.
It was a table, three chairs, Marie and I and Joe.
And coming over your head are the pipes that the electric wires from through into the chamber.
And they're basically coming right over your head.
So in that environment with no sound anywhere, the three of us sat down to talk about the
clemency offer.
And you sit there and you think, oh, you're facing death and you get an offer for clemency,
no brainer.
But nothing's a no brainer with Gerrata and he was mowing over whether or not he was going
to accept it.
And we were talking to him about it with these electrical wires coming over your head
into the death chamber.
And we're down to the last day.
And so he had to make the decision and we just sat there and talked about what it was
going to do.
And finally, he took a while.
And finally he decided he'd signed it.
He signed it.
And I think he signed it in.
And so that's got to be number one.
I think one of the others is a meeting.
We were working on Earl Washington's exoneration.
We had DNA results that it's honorated to him by Bob Hall, the lead counsel in the case.
And I had a meeting set up with the acting attorney general, good name, Steve Rosenthal,
because the AG had stepped down because she was running for governor.
So we had this meeting with Steve.
And we were going to get to say, OK, look, let's have this.
We'll do this.
I have to join the press conference.
Everybody will come out looking good.
We'll scratch your back.
You scratch ours.
This is sympathetic or everything's wonderful.
And we're sitting there having new Steve and everything's going great.
And then some secretary that walks in with another.
And he goes, says, this is what I was afraid of.
And what it was was a note by the head of the death squad, a guy named Jerry Slonaker,
saying, saying, well, the results may not be his
clear as we thought.
So Rosenthal says this to us, Bob and I go out of our minds.
And we leave and you said, tell us what's going on.
We'll be back to you.
And so we leave.
And the next thing we know, rather than there being a joint press conference, they just
go off and have their own.
And they have a press conference in which they announce that the results are unclear.
So we had our own, we were working with Barry Schatz.
We had our own expert who was doing the DNA.
And we told them what was coming out of the AG's office now and coming out of the forensic
sciences lab.
And we told them what it was.
And our guy said, so the argument now was that it could have been girl and others.
Now the Holocaust case from day one with her all had always been that the victim, as she's
dying, says to the police officers, it was one black man that had always been their
theory of the case.
Now all of a sudden it was her own others.
So we told our expert about the story and he says, he could have been a million people.
None of them was her own.
But they go ahead and they have their press conference and just sort of last things up.
We make new pitches to Governor Wilder and what he does is come out with a, he doesn't
pardon him.
He sentences him, he gives him life with the possibility of parole.
Now subsequently years later under Governor Gilmore, there's new DNA testing that's possible,
new type of DNA testing.
And then everybody agrees at that point that that Earl is exonerated.
Gilmore grants the complete pardon.
But a typical Virginia fashion, they can, they never let you enjoy your victory.
So all the scenes that you've ever seen where the lawyers in there and the guy comes out,
there's the big, you know, everybody's hugging and all that kind of stuff.
They take Earl out the back door.
We're out front at Greensville.
They take Earl out in a car the back way and so we don't even know that he's leaving.
So we never even cut, we're just sort of left standing there out front.
They take an Earl off and we've made this arrangements for Earl to be in this sort of halfway
house in Virginia Beach and they just take him off to Virginia Beach.
So we, they, they're able to deny us the satisfaction of actually having an Earl walk out
with us.
So it's the kind of petty crap that Virginia, that's how he was about.
Yeah, it was really, really amazing.
And they would do things like, and I don't know that any other state does this, that they
would not, one of the reasons, so people were executed in Virginia faster than anywhere
else including Texas.
And you can be on death row in Texas for a long time.
And the average Texas is 12 years.
Virginia was six.
And that had to do with a lot of things about the system never getting any relief and
just sort of shooting through the system.
But they would also, the last draw was that when, he was corpus as you were approaching
the US Supreme Court, when you lost in the Court of Appeals and your next step was going
to be the petition to the Supreme Court, they immediately said an execution day.
They didn't wait for the Supreme Court to deny your, your serve petition.
They would say a day in advance.
So it was always this showdown with the Supreme Court and the last waiting for the C, whether
you get an order for midnight, 11 o'clock, whatever they did the executions.
So they just had to do this thing where they could just pull the switch at the first possible
moment.
Yeah, that's a lot to take in.
I'm going to switch gears a little bit here.
So you talk some about your involvement with the ADP, you know, kind of before it was
the VADP.
Now, of course, you're on the board.
What is impressed you about the organization, about the people involved?
Well, people have been, you know, it's existed over a long period of time and a lot of people
have been involved.
A lot of those people are gone now and there are people that we kind of forget about.
People like ministers, like George Records and Jim Price, who, you know, ministered to
guys on the road, on the routes forward.
And there are, you know, Marie was not with VADP, but her work.
It was just a lot of people involved with the organizations who played roles of helping
with lobbying, writing to delegates and senators, showing up in vigils, just all of these things,
writing letters.
And all of that over the course of time, so you need support when you're doing this just
psychologically.
It's very easy to feel that you're alone, no matter what part you're playing.
It's very easy to feel like you're alone and it helps to have some organizational
effort to make you know you're part of something bigger.
That's pretty beautiful.
And then, you know, this is going to jump a little bit back.
You know, decades of work in the abolition movement, you know, within VADP outside of it,
representing defendants on death row when, you know, when abolition finally happened.
Right.
You know, what did you think?
How did you feel?
Was it feeling really, I mean, we kind of saw it coming, which is what you alluded to.
Well, you know, you saw the table being set, but that doesn't mean you were able to eat
off of it.
I have to say that I didn't believe it until it happened.
I mean, I was hopeful.
And because I was on the board, you know, I was hearing the stories of the success in
the lobbying and I believed it, but you still knew it was going to be a close call.
In fact, in that closer than we thought it was going to be when there were public and
some of them started bailing on it because they wanted this automatic life without parole.
So it was, so you were never confident until it actually happened.
So you know, it's a mixture of emotions.
One is disbelief.
One is incredible relief.
One is a certain pride, I think, in being in part of an effort that we are the first
state in the South to abolish it.
And more importantly than that, we were number two.
And we were so committed to doing it.
And I will confess, I'm not a religious person.
And so forgiveness is not the thing that's stopped my list.
So I have to say that I have a lot of bitterness to the people on the other side of the aisle
in the legal profession with whom I had a deal.
I think were callous and mean-spirited.
And for many of them, they weren't just doing a job, they were true believers in executing
our clients who saw none of the humanity in our clients that should be so obvious.
And so I think that they were, I mean, I know that I felt like we got you finally.
It's got a little bit of payback.
It's got to feel good.
So we've so got the one, you know, what do you want to say to the people there?
Is there anything else you want to touch on before we do that?
Yeah, no, I don't think so.
I mean, you know, I mean, for me, one of the things which is sort of implicit in what
I've said is that the arc of the, the arc of the death penalty in Virginia has sort of
paralleled my legal career.
I came here for the beginning of it.
I've got involved with it, not knowing really what I was doing, you know, early on.
And as I, as my career, legal career winds down, you know, definitely ended.
So it was sort of nice structure to it.
It's not bad.
Put them above or something, right?
Right.
Little more.
All right.
So for this last one, again, I would like for you to look, you know, more so right into
the camera.
But imagining that this VADP event in the fall and November, you know, is there anything
that you would like to say to the VADP supporters, you know, who are going to gather there?
Well, I'd like to think that the abolition of the death penalty in Virginia is an enormous
achievement accomplished by the efforts and beliefs of a wide variety of people, of people
involved in the legal system, of mitigation specialists, of investigators, of lawyers,
and of people not involved in the system directly, who have worked with lobbying and have worked
with vigils and have worked in all sorts of areas to try to bring an end to this moral
abomination.
And it's people of all types of faiths and of non-faith and who have joined together.
And accomplish something that I think is just of enormous historical significance.
Great.
All right.
Go ahead.
