We Will Kill You Anyway

The American Lawyer
December 1, 1990

ON OCTOBER 17, AT 10:58 P.M., GOV-ernor L. Douglas Wilder of Virginia sent a message to prisoners on death row, one that says something about what we have come to as a society:

If you treat your guards with exceptional respect and courtesy, if you work hard and strive to reform, if you put yourself at risk to shield hostages threatened with death by prisoners wielding knives and to prevent the brutal rape of a nurse-if you do all this, we will kill you anyway.

They killed Wilbert Lee Evans almost on schedule that night, six minutes after Governor Wilder gave the go-ahead by spurning Evans's clemency petition.

Wilder's action was no surprise. He has a burning ambition for national office and reason to worry that he'd be Willie Hortonized if he spared a cop killer like Evans.

Earlier that evening the United States Supreme Court had sent a similar message when it denied a stay and turned aside Evans's last appeal without comment.

In the eyes of the law, the Court seemed to be saying, a condemned man who heroically protected hostages during a prison break is no better off than if he had killed them. Rewarding good deeds and showing mercy isn't the business of the courts. Try the governor.

Justice Thurgood Marshall's scathing, solitary dissent, calling the imminent execution "dead wrong," gave Evans some comfort. "Please bury this with me," he wrote in a childlike scrawl on his copy ofthe dissent. He needed help spelling "bury." He stuffed the opinion in his pocket before walking into the death chamber.

The big man jerked backward as the first 55-second jolt of 2,400 volts surged through a dampened sponge into his brain. Blood streamed from under his leather death mask, spilling onto his chin and chest, soaking his shirt, followed by bloody foam from his lower lip. Witnesses cringed. Some later said they saw blood coming from his ears and heard air rushing from his lips with a sizzling sound, then a kind of moan.

Evans's lawyers accuse the state of torturing him to death in a malfunctioning electric chair. Officials say the killing machine worked fine, that Evans just had a nosebleed, and that the only sound was from the motor.

Aside from its grisly denouement, the history of the state's nine-year drive to kill Wilbert Evans shows how our society seems to have given up on the possibility of rehabilitation. It also shows what a relentless momentum builds up once machinery is put in place to feed the public lust for vengeance, and what faint protection the courts provide when this momentum takes an illegal turn.

In Evans's case the momentum was powerful enough to doom a prisoner credited by several guards with saving their lives during a prison escape. It doomed a man whose appeals included strong evidence that the state had introduced false conviction records at his original sentencing in 1981, then concealed this from the courts for two years while changing the law so as to get another shot at electrocuting him.

Evans's appeals were pursued with special dedication by a team of first-rate lawyers. Solo practitioner Jonathan Shapiro of Alexandria, Virginia, had fought to save him since 1982. Arthur Mathews of Washington, D.C.'s Wilmer, Cutler & Pickering came in in 1984, joined later by partner Thomas Connell and others, including associate Mark Cahn.

But the lawyers found little sympathy in the courts for a man with a history of violent crime who had killed an Alexandria sheriffs deputy with his own gun in a desperate 1981 bid to escape custody.

They found no sympathy at all in the governor's mansion under Wilder, who declined through a spokesperson to be interviewed, or his two predecessors, Charles Robb and Gerald Baliles-not in an era when politicians nationwide compete in dreaming up new categories of criminals to kill.

The lawyers were stalled for years in their efforts to amass detailed corroboration of Evans's account that he had shielded nurses and guards seized by other prisoners as hostages on May 31, 1984, at the Mecklenburg Correctional Center in Boydton, Virginia, in what turned out to be the largest death row escape in the nation's history. For five years former hostages, apparently fearful of displeasing superiors, ignored Shapiro's repeated efforts to reach them. Meanwhile state officials stonewalled his requests for the state's own investigative reports, which strongly supported Evans's account.

The state withheld these reports to the end; Evans's lawyers finally got them 23 hours before his execution, from another inmate's lawyer.

Even without this last-minute assistance, Shapiro and the Wilmer, Cutler team had put together enough evidence by October 13, 1990, to convince federal district judge Robert Merhige, Jr., of Richmond to stay the execution. Merhige held that Evans's "selfless and heroic acts" during the May 1984 prison break, together with guards' statements that he was a model prisoner, cast doubt on the sentencing jury's inherently "speculative" February 1984 finding that, unless executed, Evans would pose a danger to society. It would be "unwarranted vengeance in its ultimate form," Merhige said, to execute Evans without a full hearing to consider anew whether he would be dangerous if allowed to live out his life in prison.

Merhige was brusquely reversed three days later by the U.S. Court of Appeals for the Fourth Circuit. The three-judge panel adopted the state's position that nothing any condemned man docs after imposition of a valid death sentence, no matter how heroic, entitles him to judicial relief; clemency is up to the governor.

"INCREDIBLE PAPERS"

Evans's lawyers prepared his last petition for a stay and for full Supreme Court review in an all-night session at Wilmer, Cutler. They filed it less than 13 hours before the scheduled execution.

The evidence they put before the Court and Governor Wilder showed that Evans had found himself in an explosive situation when some of the 22 other prisoners on death row (who had been planning an escape for weeks) surprised a guard and took control of the cell block. They lured 11 other guards and two nurses into the area, subdued them one by one, then took their uniforms, tied them up, and locked most of them in a closet.

The hostages were in grave danger. Agitated murderers armed with makeshift knives were threatening to kill all the guards and were sexually assaulting a nurse. Finally six escaped death row in guards' uniforms, pretending they were disposing of a bomb, and drove off in a prison van(All were eventually recaptured.)

Evans was credited with playing a crucial role in calming the situation, admonishing other prisoners repeatedly not to harm the hostages, loosening the hostages' bonds, bringing them water, and helping release them after the escapees left.

Typical of the accounts appended to Evans's last appeal were these:

•A state police report quoted a nurse saying Evans had appeared and "ordered" two prisoners to stop after they had made her strip, tied her to a bed, and begun to assault her sexually. They stopped. (Evans stood 6 feet 3 inches tall and weighed about 240 pounds.)

•A guard named Ricardo Holmes said in an affidavit that the ringleaders had talked of killing him and other hostages. "Had it not been for Evans, I might not be here today," Holmes maintained.

•Guard Harold Crutchfield said in an affidavit that Evans "was doing what he could to aid the hostages.... It is also my firm belief that if Evans had not been present during the escape, things may have blown up and people may have been harmed.... Evans is a model inmate.... He poses no risk of harm to any correctional officer."

•Lieutenant Milton Crutchfield told state police, "None of us might [have] been alive today" but for the efforts of four inmates, including Evans, who "played a great part in our safety and release."

•A former prison food service supervisor named Edgar Brummell, who spoke to hostages right after the escape, said in an affidavit that "Evans put his life on the line in May 1984 when he stuck his neck out for the hostages" and that otherwise they "probably would have been killed."

•E. B. Harris, a sergeant at Mecklenburg, wrote Governor Wilder last month that Evans "saved some of the officers from harm and almost certain death" during the 1984 escape, and "has shown me and the majority of the staff nothing but respect" over the years.

•Willie Lloyd Turner, a prisoner who had joined Evans in protecting the hostages, told state police that Evans had warned those seeking to escape, "There will be no killing and there will be no raping. You have gotten what you want, now go."

•A guard named James Fitts told state police, "I heard James Briley make a statement that he was going to kill all of the guards, but Evans and Turner talked him out of it."

In all, 18 former hostages and other Mecklenburg employees provided statements to police in 1984 or to Evans's lawyers much later either crediting him with helping the hostages or praising his overall conduct and saying he would pose no threat to staff or inmates if allowed to live out his life in prison.

Toni Bair, who was brought in as warden at Mecklenburg after the escape and knew Evans well, wrote a letter in 1989 at Shapiro's request saying that if the governor were to commute Evans's sentence to life in prison, other prisoners might follow his example in the eventuality of a riot or serious hostage situation."

"They are incredible papers, they really are," Judge Merhige remarked at the October 13 oral argument. "I have never seen anything like this. The prison officials are supporting this man."

The state denied in its court papers that Evans had been a model prisoner, and a review of prison records does show some infractions, mainly fighting with other death row inmates. But the state did not dispute that Evans had protected hostages from rape and possible death.

Rather, in his Supreme Court brief Senior Assistant Attorney General Donald Curry brushed aside Evans's "self-serving" factual contentions in a cryptic footnote. The footnote suggested that Evans had been "playing both sides" by assisting in the escape and quoted a guard's statement that Evans had tied his hands. Curry neglected to quote the same guard's statements that in doing so Evans had said he was doing his best to prevent violence; that earlier that day Evans had seemed to be "trying to tell us something ... but we didn't pick up on it"; and that Evans had helped free the hostages after the escape.

Justice Marshall called the footnote "a mean and deceitful attempt to belittle Evans's claims" and assailed "the sheer gall of the manner in which the state makes its feeble challenge."

Former Mecklenburg warden Toni Bair provided some perspective in a recent interview with The American Lawyer: "If you're sitting in there on death row with people who have taken a bunch of hostages and are trying to escape, the name of the game is survival. You've got to go along with the program to a certain degree. You aren't going to tell the people who are trying to escape, "No, I'm going to stop you.'"

Bair, now assistant commissioner of the New York City Department of Corrections, was asked whether Evans had put himself at risk when he shielded the hostages. "You're damned right," he said. "Anytime you tell somebody else not to do what they're doing, you risk having the anger of that individual turned on you."

James Dunning, Alexandria's sheriff, went on television as Evans's execution approached to say, "This is not a changed man. This is a man who's cunning, who's crafty, and who's doing his best to use the legal system to keep himself alive."

Only Evans knew his true motives. But as Toni Bair says, "Lord knows, during a hostage situation staff need all the help they can get."

Evans's actions and motives were irrelevant as far as the state was concerned. Curry's position in court, adopted by the Fourth Circuit, was that it made no difference whether Evans had saved a life, or 14 lives, or 50 lives, for that matter. His sentence was valid when imposed. Period.

THE FINAL HOURS

For Evans's four lawyers the final hours left an especially bitter taste. They knew there was little chance the current Supreme Court would make new, pro-defendant death penalty law by using post-sentencing good deeds to overturn a sentence deemed valid when imposed. And they had exhausted all possible challenges to the 1984 sentencing in three previous petitions for Supreme Court review.

Wilder was their last hope.

So after delivering their papers to the Court the morning of the scheduled execution, the four lawyers and Wilmer, Cutler legal assistants Rochester "Ches" Johnson and Brooke Pinkerton drove to Richmond at breakneck speed, still wearing the clothes they had put on the previous morning.

After holding a press conference with local death penalty opponents, the lawyers set up camp outside the statehouse with a mobile phone about 4 P.M., seeking an audience with the governor. His staff had ruled out any meeting until the Supreme Court acted.

While the lawyers waited, Evans visited with his wife, who had separated from him in 1977 but still cared for him and had described him to his lawyers as a loving, compassionate companion. He had his last meal at 6 P.M. He got what he asked for: pigs' feet, collard greens, potato salad, bread, and a Sprite.

A copy of the Supreme Court's no-comment rejection and the Marshall dissent was faxed by the clerk's office to a nearby hotel at 7:37 P.M. The two legal assistants rushed two miles to the state penitentiary with a copy for Evans.

Mathews and Shapiro called a Wilder aide on their mobile phone. They pleaded desperately in the darkness outside the statehouse door for a chance to see the governor, or at least the aide, to press their case for the clemency petition they had filed in July. Shapiro also requested that the governor disclose his decision soon, up or down, to end the uncertainty and give Evans time to prepare for death, if die he must.

But while others on routine business came and went, Mathews and his colleagues never got past the two state troopers at the door. "They did let me one step in the doorway," Mathews recalls, "so that I could be under a light to scratch my notes to Wilder on the faxed copy of the Marshall opinion I was sending up to him. That's as far as I got."

Finally the six-person legal team left for the penitentiary, making their way through a surreal scene of television lights, men on horseback, and other officers blocking every entrance, with an ambulance waiting outside the front gate.

Their client was waiting in a cell next to the death chamber in the 190-year-old prison's bleak basement, his head and leg already shaved, the better to conduct electricity. Evans stroked the stubble on his head, saying he wished they hadn't cut it so short.

Legal assistant Pinkerton was struck by the clocks-big, clunky government-issue clocks, one just outside Evans's cell, its big hands creeping inexorably on. Less than two hours left.

Some clergymen and anti-death penalty activists were there, too. The lawyers huddled around their client. Evans thanked them warmly for all they had done and apologized for having fired them all at various points in his displeasure about their setbacks in the courts and disagreements with their legal strategy.

(Shapiro had persuaded Evans at one point to relent from firing the Wilmer, Cutler lawyers, and Connell had persuaded Evans at another point to rescind his firing of Shapiro.)

"He's holding Jonathan's and my hands through the bars," Mathews recalls. "He said to Jonathan and me, 'You guys, you've got to remember one thing. Don't ever take the word of a prosecutor. Even if you think the prosecutor may be right, you've got to remember me and always take the last step.'"

The routine of prison life melde...

ON OCTOBER 17, AT 10:58 P.M., GOV-ernor L. Douglas Wilder of Virginia sent a message to prisoners on death row, one that says something about what we have come to as a society:

If you treat your guards with exceptional respect and courtesy, if you work hard and strive to reform, if you put yourself at risk to shield hostages threatened with death by prisoners wielding knives and to prevent the brutal rape of a nurse-if you do all this, we will kill you anyway.

They killed Wilbert Lee Evans almost on schedule that night, six minutes after Governor Wilder gave the go-ahead by spurning Evans's clemency petition.

Wilder's action was no surprise. He has a burning ambition for national office and reason to worry that he'd be Willie Hortonized if he spared a cop killer like Evans.

Earlier that evening the United States Supreme Court had sent a similar message when it denied a stay and turned aside Evans's last appeal without comment.

In the eyes of the law, the Court seemed to be saying, a condemned man who heroically protected hostages during a prison break is no better off than if he had killed them. Rewarding good deeds and showing mercy isn't the business of the courts. Try the governor.

Justice Thurgood Marshall's scathing, solitary dissent, calling the imminent execution "dead wrong," gave Evans some comfort. "Please bury this with me," he wrote in a childlike scrawl on his copy ofthe dissent. He needed help spelling "bury." He stuffed the opinion in his pocket before walking into the death chamber.

The big man jerked backward as the first 55-second jolt of 2,400 volts surged through a dampened sponge into his brain. Blood streamed from under his leather death mask, spilling onto his chin and chest, soaking his shirt, followed by bloody foam from his lower lip. Witnesses cringed. Some later said they saw blood coming from his ears and heard air rushing from his lips with a sizzling sound, then a kind of moan.

Evans's lawyers accuse the state of torturing him to death in a malfunctioning electric chair. Officials say the killing machine worked fine, that Evans just had a nosebleed, and that the only sound was from the motor.

Aside from its grisly denouement, the history of the state's nine-year drive to kill Wilbert Evans shows how our society seems to have given up on the possibility of rehabilitation. It also shows what a relentless momentum builds up once machinery is put in place to feed the public lust for vengeance, and what faint protection the courts provide when this momentum takes an illegal turn.

In Evans's case the momentum was powerful enough to doom a prisoner credited by several guards with saving their lives during a prison escape. It doomed a man whose appeals included strong evidence that the state had introduced false conviction records at his original sentencing in 1981, then concealed this from the courts for two years while changing the law so as to get another shot at electrocuting him.

Evans's appeals were pursued with special dedication by a team of first-rate lawyers. Solo practitioner Jonathan Shapiro of Alexandria, Virginia, had fought to save him since 1982. Arthur Mathews of Washington, D.C.'s Wilmer, Cutler & Pickering came in in 1984, joined later by partner Thomas Connell and others, including associate Mark Cahn.

But the lawyers found little sympathy in the courts for a man with a history of violent crime who had killed an Alexandria sheriffs deputy with his own gun in a desperate 1981 bid to escape custody.

They found no sympathy at all in the governor's mansion under Wilder, who declined through a spokesperson to be interviewed, or his two predecessors, Charles Robb and Gerald Baliles-not in an era when politicians nationwide compete in dreaming up new categories of criminals to kill.

The lawyers were stalled for years in their efforts to amass detailed corroboration of Evans's account that he had shielded nurses and guards seized by other prisoners as hostages on May 31, 1984, at the Mecklenburg Correctional Center in Boydton, Virginia, in what turned out to be the largest death row escape in the nation's history. For five years former hostages, apparently fearful of displeasing superiors, ignored Shapiro's repeated efforts to reach them. Meanwhile state officials stonewalled his requests for the state's own investigative reports, which strongly supported Evans's account.

The state withheld these reports to the end; Evans's lawyers finally got them 23 hours before his execution, from another inmate's lawyer.

Even without this last-minute assistance, Shapiro and the Wilmer, Cutler team had put together enough evidence by October 13, 1990, to convince federal district judge Robert Merhige, Jr., of Richmond to stay the execution. Merhige held that Evans's "selfless and heroic acts" during the May 1984 prison break, together with guards' statements that he was a model prisoner, cast doubt on the sentencing jury's inherently "speculative" February 1984 finding that, unless executed, Evans would pose a danger to society. It would be "unwarranted vengeance in its ultimate form," Merhige said, to execute Evans without a full hearing to consider anew whether he would be dangerous if allowed to live out his life in prison.

Merhige was brusquely reversed three days later by the U.S. Court of Appeals for the Fourth Circuit. The three-judge panel adopted the state's position that nothing any condemned man docs after imposition of a valid death sentence, no matter how heroic, entitles him to judicial relief; clemency is up to the governor.

"INCREDIBLE PAPERS"

Evans's lawyers prepared his last petition for a stay and for full Supreme Court review in an all-night session at Wilmer, Cutler. They filed it less than 13 hours before the scheduled execution.

The evidence they put before the Court and Governor Wilder showed that Evans had found himself in an explosive situation when some of the 22 other prisoners on death row (who had been planning an escape for weeks) surprised a guard and took control of the cell block. They lured 11 other guards and two nurses into the area, subdued them one by one, then took their uniforms, tied them up, and locked most of them in a closet.

The hostages were in grave danger. Agitated murderers armed with makeshift knives were threatening to kill all the guards and were sexually assaulting a nurse. Finally six escaped death row in guards' uniforms, pretending they were disposing of a bomb, and drove off in a prison van(All were eventually recaptured.)

Evans was credited with playing a crucial role in calming the situation, admonishing other prisoners repeatedly not to harm the hostages, loosening the hostages' bonds, bringing them water, and helping release them after the escapees left.

Typical of the accounts appended to Evans's last appeal were these:

•A state police report quoted a nurse saying Evans had appeared and "ordered" two prisoners to stop after they had made her strip, tied her to a bed, and begun to assault her sexually. They stopped. (Evans stood 6 feet 3 inches tall and weighed about 240 pounds.)

•A guard named Ricardo Holmes said in an affidavit that the ringleaders had talked of killing him and other hostages. "Had it not been for Evans, I might not be here today," Holmes maintained.

•Guard Harold Crutchfield said in an affidavit that Evans "was doing what he could to aid the hostages.... It is also my firm belief that if Evans had not been present during the escape, things may have blown up and people may have been harmed.... Evans is a model inmate.... He poses no risk of harm to any correctional officer."

•Lieutenant Milton Crutchfield told state police, "None of us might [have] been alive today" but for the efforts of four inmates, including Evans, who "played a great part in our safety and release."

•A former prison food service supervisor named Edgar Brummell, who spoke to hostages right after the escape, said in an affidavit that "Evans put his life on the line in May 1984 when he stuck his neck out for the hostages" and that otherwise they "probably would have been killed."

•E. B. Harris, a sergeant at Mecklenburg, wrote Governor Wilder last month that Evans "saved some of the officers from harm and almost certain death" during the 1984 escape, and "has shown me and the majority of the staff nothing but respect" over the years.

•Willie Lloyd Turner, a prisoner who had joined Evans in protecting the hostages, told state police that Evans had warned those seeking to escape, "There will be no killing and there will be no raping. You have gotten what you want, now go."

•A guard named James Fitts told state police, "I heard James Briley make a statement that he was going to kill all of the guards, but Evans and Turner talked him out of it."

In all, 18 former hostages and other Mecklenburg employees provided statements to police in 1984 or to Evans's lawyers much later either crediting him with helping the hostages or praising his overall conduct and saying he would pose no threat to staff or inmates if allowed to live out his life in prison.

Toni Bair, who was brought in as warden at Mecklenburg after the escape and knew Evans well, wrote a letter in 1989 at Shapiro's request saying that if the governor were to commute Evans's sentence to life in prison, other prisoners might follow his example in the eventuality of a riot or serious hostage situation."

"They are incredible papers, they really are," Judge Merhige remarked at the October 13 oral argument. "I have never seen anything like this. The prison officials are supporting this man."

The state denied in its court papers that Evans had been a model prisoner, and a review of prison records does show some infractions, mainly fighting with other death row inmates. But the state did not dispute that Evans had protected hostages from rape and possible death.

Rather, in his Supreme Court brief Senior Assistant Attorney General Donald Curry brushed aside Evans's "self-serving" factual contentions in a cryptic footnote. The footnote suggested that Evans had been "playing both sides" by assisting in the escape and quoted a guard's statement that Evans had tied his hands. Curry neglected to quote the same guard's statements that in doing so Evans had said he was doing his best to prevent violence; that earlier that day Evans had seemed to be "trying to tell us something ... but we didn't pick up on it"; and that Evans had helped free the hostages after the escape.

Justice Marshall called the footnote "a mean and deceitful attempt to belittle Evans's claims" and assailed "the sheer gall of the manner in which the state makes its feeble challenge."

Former Mecklenburg warden Toni Bair provided some perspective in a recent interview with The American Lawyer: "If you're sitting in there on death row with people who have taken a bunch of hostages and are trying to escape, the name of the game is survival. You've got to go along with the program to a certain degree. You aren't going to tell the people who are trying to escape, "No, I'm going to stop you.'"

Bair, now assistant commissioner of the New York City Department of Corrections, was asked whether Evans had put himself at risk when he shielded the hostages. "You're damned right," he said. "Anytime you tell somebody else not to do what they're doing, you risk having the anger of that individual turned on you."

James Dunning, Alexandria's sheriff, went on television as Evans's execution approached to say, "This is not a changed man. This is a man who's cunning, who's crafty, and who's doing his best to use the legal system to keep himself alive."

Only Evans knew his true motives. But as Toni Bair says, "Lord knows, during a hostage situation staff need all the help they can get."

Evans's actions and motives were irrelevant as far as the state was concerned. Curry's position in court, adopted by the Fourth Circuit, was that it made no difference whether Evans had saved a life, or 14 lives, or 50 lives, for that matter. His sentence was valid when imposed. Period.

THE FINAL HOURS

For Evans's four lawyers the final hours left an especially bitter taste. They knew there was little chance the current Supreme Court would make new, pro-defendant death penalty law by using post-sentencing good deeds to overturn a sentence deemed valid when imposed. And they had exhausted all possible challenges to the 1984 sentencing in three previous petitions for Supreme Court review.

Wilder was their last hope.

So after delivering their papers to the Court the morning of the scheduled execution, the four lawyers and Wilmer, Cutler legal assistants Rochester "Ches" Johnson and Brooke Pinkerton drove to Richmond at breakneck speed, still wearing the clothes they had put on the previous morning.

After holding a press conference with local death penalty opponents, the lawyers set up camp outside the statehouse with a mobile phone about 4 P.M., seeking an audience with the governor. His staff had ruled out any meeting until the Supreme Court acted.

While the lawyers waited, Evans visited with his wife, who had separated from him in 1977 but still cared for him and had described him to his lawyers as a loving, compassionate companion. He had his last meal at 6 P.M. He got what he asked for: pigs' feet, collard greens, potato salad, bread, and a Sprite.

A copy of the Supreme Court's no-comment rejection and the Marshall dissent was faxed by the clerk's office to a nearby hotel at 7:37 P.M. The two legal assistants rushed two miles to the state penitentiary with a copy for Evans.

Mathews and Shapiro called a Wilder aide on their mobile phone. They pleaded desperately in the darkness outside the statehouse door for a chance to see the governor, or at least the aide, to press their case for the clemency petition they had filed in July. Shapiro also requested that the governor disclose his decision soon, up or down, to end the uncertainty and give Evans time to prepare for death, if die he must.

But while others on routine business came and went, Mathews and his colleagues never got past the two state troopers at the door. "They did let me one step in the doorway," Mathews recalls, "so that I could be under a light to scratch my notes to Wilder on the faxed copy of the Marshall opinion I was sending up to him. That's as far as I got."

Finally the six-person legal team left for the penitentiary, making their way through a surreal scene of television lights, men on horseback, and other officers blocking every entrance, with an ambulance waiting outside the front gate.

Their client was waiting in a cell next to the death chamber in the 190-year-old prison's bleak basement, his head and leg already shaved, the better to conduct electricity. Evans stroked the stubble on his head, saying he wished they hadn't cut it so short.

Legal assistant Pinkerton was struck by the clocks-big, clunky government-issue clocks, one just outside Evans's cell, its big hands creeping inexorably on. Less than two hours left.

Some clergymen and anti-death penalty activists were there, too. The lawyers huddled around their client. Evans thanked them warmly for all they had done and apologized for having fired them all at various points in his displeasure about their setbacks in the courts and disagreements with their legal strategy.

(Shapiro had persuaded Evans at one point to relent from firing the Wilmer, Cutler lawyers, and Connell had persuaded Evans at another point to rescind his firing of Shapiro.)

"He's holding Jonathan's and my hands through the bars," Mathews recalls. "He said to Jonathan and me, 'You guys, you've got to remember one thing. Don't ever take the word of a prosecutor. Even if you think the prosecutor may be right, you've got to remember me and always take the last step.'"

The routine of prison life melded into the drama that was building. A ringing telephone and a guard's television tuned into the World Series provided background noise. Evans glanced at the game through the bars once or twice. "There goes another one," he said after one play. He was to die before the game was over.

He wanted to call Rita Goebert of Palmyra, New York, a pen pal for 16 years, who had first contacted Evans through a church outreach program for prisoners. She had beseeched Wilder not to allow the "waste of a beautiful human being," had said that his dozens of cheery letters had helped sustain her in times of "sadness and, pain," and that she and her husband "love him very much."

The guard manning the phone kept dialing the wrong area code, refusing to heed Evans, who kept telling him the right one. This wasted precious minutes. Finally the call went through-collect. "I mailed you two letters today," Goebert told Evans. "They'll come back to you," he said.

During these last hours, recalls Marie Deans, director of the Virginia Coalition on Jails and Prisons, "I kept trying to talk to Wilbert about what was going to happen, what the process was, because I knew he needed to make some kind of preparation.... But Wilbert had great faith in the governor.... He just kept saying, 'Well, let's wait and see what the governor's going to do.'"

What was the governor doing? Watching the World Series? Had he read the clemency petition, the three letters Mathews had sent him since the day before, the hostage statements, the Marshall dissent?

For months the lawyers' entreaties to Wilder had disappeared as into a void. No questions, no answers, nothing. Did Wilder ever speak to anyone with detailed knowledge of the evidence concerning Evans's deeds that day in May 1984?

The attorney general's office would have been a logical resource, but Wilder didn't use it. "We weren't asked for any advice on the clemency matter," says Senior Assistant Attorney General Curry, adding, "I wouldn't be so presumptuous as to tell the governor what he ought to do."

Edward Murray, director of the state Department of Corrections, says he was not asked for any recommendation on clemency and did not make one.

The big clock's minute hand passed 10:30 and was closing in on 11 P.M. Evans had finally given up hope, But he wanted to dictate a last letter for Governor Wilder. He had written him before seeking clemency, and had sent him some of the hundreds of simple poems and songs he had written while trying to educate himself on death row. Shapiro wrote the letter down for him.

"I have a poem on my mind tonight that I know I will not be able to share with you," Evans said, "but it is something that's based on being just and right. Thank you even though you didn't see fit to grant me clemency. Please do as I ask you. Learn how to write poetry. Not just for you but for your peoples. And I want you to know that these are people that you see everyday that walk the same road you travel but for some reason unbeknown to them they did not make it out like you. I love you as a brother and in Christ's love.

Wilder sealed Evans's doom about ten minutes later, after the 44-year-old prisoner had been led into the death chamber and two minutes before the execution was scheduled to take place. The governor's chief of staff told corrections director Murray, who was waiting on an open phone line in the death chamber, that Wilder saw "no need to intervene"-or so Murray later told Shapiro when he asked for he exact words.

They strapped Evans into the oak chair and put a dampened sponge and a wired metal cap on top of his head, in electrode on his right ankle, a leather mask over his face. A chaplain said, "God bless you." Evans said the same. Then they killed him.

Shapiro, who had spent thousands of hours trying to save Evans since 1982, sent his client's last letter to Wilder two days later. He also sent a letter of his own. While a part of him had suspected all along "that the politics were too difficult, and that your future plans would dictate your action in this case," Shapiro wrote, "I now realize I never thought you would let this execution happen."

He continued, "At two minutes to eleven, when your office made that horrible, merciless call to the basement, my soul was shocked and unbelieving. And while a lawyer feels regret at the end of a fight lost, the man in me feels nothing but bitterness. Was any purpose served in not letting us know sooner? Was it so important to inflict this additional pain on Evans, his family, and friends?"

In a longer, still angrier letter, Wilmer, Cutler's Mathews, Connell, and Cahn asked the governor, "Why like Tolkien's Gollum did you hide in your protected enclave rather than forth-rightly hear our plea, and squarely confront us with your decision and its underlying principles?"

Laura Dillard, Wilder's press secretary, relaying the governor's refusal to comment on Evans, says that his policy on clemency petitions is to weigh all the facts but not meet with the lawyers or publicly explain his decisions. "He's not going to elaborate on his decision because he simply doesn't do that on this issue," Dillard adds. She denies that Wilder was swayed by the likelihood that sparing a cop killer would hurt him politically.

"THE SMOKING GUN"

The refusal of the courts and the governor to confront openly the evidence of Evans's exemplary conduct on death row is not the only thing that still haunts his lawyers.

They are also convinced that their client was put on death row illegally, that they proved it, and that the courts-reluctant to let a cop killer with a violent history escape death -simply ignored plain evidence of what Connell calls "unmitigated and outrageous prosecutorial misconduct from day one."

There was never any doubt that Evans shot William Gene Truesdale, the Alexandria sheriffs deputy, to death during a January 1981 escape attempt.

Evans maintained until his death that the shooting was unintentional-that when being led from the courthouse into the local jail he impulsively took a chance to grab Truesdale's gun and shot the deputy while trying to shoot off his own handcuffs.

The evidence suggested otherwise: Three prisoners testified that Evans had said beforehand that he was going to escape. One said Evans planned to "take out" anyone in his way, rather than return to his native North Carolina to face a possible life sentence on a murder charge.

Another prisoner said that while wrestling with Truesdale, Evans had said, "Let me go or I'll kill your ass." (Evans denied this.) Evans had also pointed the pistol at others during the chase that ensued before he was captured.

After a trial before Judge Wiley Wright, Jr., of Alexandria Circuit Court the jury convicted Evans of first-degree murder. Prosecutor John Kloch, Alexandria's elected commonwealth's attorney, then urged the jury to find a death sentence was warranted because Evans was a menace to society likely to commit more violent crimes in the future, an "aggravating circumstance" under Virginia law.

To show that, Kloch introduced North Carolina records purporting to show seven previous convictions, conspicuously including assault on a police officer with a knife. (These records did not include the North Carolina murder charge, which was never taken to trial.)

Evans's two court-appointed defense lawyers, whose fees were capped by state law at $600 apiece and who spent less than 200 hours on the case between them, offered no mitigating evidence whatever at the sentencing hearing and failed to discover major flaws in the conviction records.

Shapiro and the Wilmer, Cutler lawyers later claimed, without success, that Evans was denied effective assistance of counsel at his trial. "The way the system was designed in Virginia, it would be extremely difficult to provide effective assistance in a death case," notes Shapiro. "There's no independent psychiatrist, no investigators, nothing."

And there's hardly any money to cover the huge investment of time that a lawyer drafted to represent an indigent defendant would need to make to master the intricacies of death penalty law and to marshal mitigating evidence.

The jury found Evans likely to commit more violent crimes and on that basis recommended death. Judge Wright imposed a death sentence, the Virginia Supreme Court upheld it, and the U.S. Supreme Court denied review.

In March 1982, about two weeks before Evans was first scheduled to be executed, the American Civil Liberties Union asked Jonathan Shapiro, then a 32-year-old solo practitioner specializing in criminal defense and plaintiffs civil rights cases, to try to save Evans by seeking habeas corpus review.

"I turned it down. I didn't want to get involved in a death case," recalls Shapiro, who still practices in Alexandria and teaches a law course at American University. But about a week later he changed his mind because "the execution was very close and they couldn't find anyone else. It took me just a few hours at the courthouse looking through the records to understand that there were major problems with the conviction records."

Shapiro got a stay and by early May 1982 had confirmed that three "convictions" from 1964 were in fact only one, and that the charge of assaulting a police officer with a knife had been dropped by the prosecution on appeal.

"That was a high in the case for me," Shapiro says. "I knew that I would get Evans's death penalty overturned." He told Jerry Slonaker, the assistant state attorney general handling the case, of the flaws in the records.

And Shapiro kept digging. "I was so scared to have a guy in jeopardy of dying that I just wasn't leaving a stone unturned," he recalls, "and that's how I found the Sengel memo," which he calls "the smoking gun." The memo was a report to prosecutor Kloch from an assistant named S. Randolph Sengel-two months before Evans's trial-clearly explaining the flaws in the three 1964 "conviction" records. So Kloch had known all along.

Shapiro also learned that some of the other North Carolina conviction records were not legally admissible because they involved cases in which Evans was unrepresented by counsel; it was unclear whether Kloch had known this.

The bottom line was that only two of the seven "convictions" that were used by Kloch-and explicitly relied upon by the attorney general's office in appellate briefs and by the state supreme court in affirming the sentence-were properly .admissible before the sentencing jury.

Shapiro kept Slonaker-who Shapiro says assured him that he had serious problems with the sentencing and was moving to rectify them-posted about his discoveries, though not about the Sengel memo. Shapiro confidently awaited the state's confession of error. He knew-or thought he knew-that Evans would be able to live out his life in prison, because the Virginia Supreme Court had held that the state death penalty statute did not allow convening a new jury to reimpose the death sentence in a case like his.

What Shapiro did not know was that while he was waiting, the attorney general's office was pressing the legislature to change the rules of this deadly game. Slonaker was among those working for an amendment to provide that any death row prisoner whose sentence was invalidated after its effective date could be resentenced to death by a new jury.

By January 24, 1983, Slonaker had received information from Shapiro and prosecutor Kloch, as well as a letter from a North Carolina court clerk, clearly showing the inaccuracies and other flaws in the conviction records that Kloch had used against Evans. Slonaker had also learned from Kloch that he had known at the trial that some of the records were false, subsequent testimony by both of them suggests.

Nonetheless, Slonaker continued to deny Shapiro's allegations in court papers filed as late as March 3, 1983-nearly ten months after Shapiro had begun alleging the conviction records were false. Slonaker told Shapiro he needed more formal documentation.

It was not until March 28, 1983, that Slonaker said in a phone call initiated by Shapiro that the state was ready to confess error. By the way, Slonaker added, then-governor Charles Robb had signed into law on that very daynew "emergency" legislation to allow for resentencing prisoners like Evans-effective immediately.

"I was floored," Shapiro recalls. "I felt that I had been strung along for a year. If I'd known that they were fooling around [to amend the statute], I'd have been in front of Judge Wright immediately demanding a hearing."

Two weeks later Slonaker finally sent Judge Wright a letter confessing that Evans's "current death sentence cannot be sustained" because most of the conviction records were "seriously misleading and/or otherwise defective." Slonaker implied-falsely-that flaws in the conviction records had been "unbeknownst to the prosecution" at the trial.

Challenging the state's effort to re-sentence Evans, Shapiro claimed that Kloch had knowingly used false records and that Slonaker had deliberately stalled the confession of error until after the new sentencing law took effect.

At a September 1983 hearing before Judge Wright, Shapiro forced Kloch to admit that he had known before the trial that three of the North Carolina "convictions" were in fact one and that there was no valid "conviction" for assault on a police officer with a deadly weapon. He also admitted he had given no indication of this to the judge or jury when he put the records before them.

Kloch added that he had no intention of deceiving anyone. He and his assistant Sengel said they had privately explained the flaws to Evans's two trial lawyers and assumed they would point them out in closing argument.

But Evans's trial lawyers never told the jury of the flaws in the conviction records. They, like Kloch, let the jury draw the false inference that Evans had a valid conviction for assaulting a police officer with a deadly weapon. And they both swore at the 1983 hearing that Kloch had never told them the true facts.

Slonaker testified he had taken so long to confess error not for improper purposes of delay, but because the North Carolina records were confusing, and he had "wanted to be one hundred percent sure." Evans's lawyers argued that the sequence of events made this incredible.

In the face of this evidence, Judge Wright ruled on the spot that he was not convinced either "that the prosecution engaged in such misconduct or tactics as to warrant the court in concluding that the commonwealth is precluded from again seeking the death penalty," or that Slonaker was guilty of "purposeful and wrongful delay."

In subsequent federal habeas corpus litigation, Slonaker's colleague Curry contended weakly for the state that while Kloch had known of inaccuracies in the conviction records when he used them, "it cannot reasonably be said that [Kloch] knew that the records were 'false.'"

Judge Merhige-who said at the 1988 oral argument on the prosecutorial misconduct issues that he had not yet read the papers filed by Evans's lawyers-deferred to Judge Wright's supposed "findings that the trial prosecutor was guilty of an error in judgment but not of the knowing utilization of false evidence." And the Fourth Circuit deferred to Judge Wright's supposed "findings... that the commonwealth acted in good faith."

In fact, Judge Wright made no explicit "findings" as to whether Kloch had acted in good faith or whether-as his own testimony seemed to establish-he had knowingly used false conviction records. Wright's cryptic ruling simply skirted that question.

In affirming Wright the Virginia Supreme Court had assailed Kloch's "indifferent, careless" use of inaccurate records, saying it would "assume, without deciding" that he was guilty of "serious prosecutorial misconduct." But the court held that even if he were, Evans would be entitled to no more than a new sentencing hearing. So while the state courts sidestepped the issue of whether prosecutor Kloch had lied to the judge and jury, the federal courts avoided the issue by pretending the state courts had resolved it. All reviewing courts also credited Slonaker's self-serving explanation of his delay in admitting error.

"You can kill a person with a gun, with electricity, or with a lie," says Wilmer, Cutler's Connell. "I think Evans killed with a gun, Wilder killed with electricity, and the commonwealth's prosecutors killed just as much and just as effectively by lying, and by withholding the truth when responsibility and decency dictated that they come forward and reveal the truth."

Kloch denies lying to anyone. Asked recently for comment on the allegations by Evans's lawyers, he cited the court rulings. "It's true that convoluted records were introduced," Kloch added, "but that doesn't rise to prosecutorial misconduct."

Slonaker did not return several phone calls seeking his comment on the charges by Evans's lawyers.

RESENTENCING: A FINGER ON THE SCALES

Evans had a new sentencing hearing in February 1984 before a new jury, as provided in the new law. This time Kloch introduced testimony of violent crimes that he had not used at the first sentencing. They included charges, which had never been tried, that Evans had shot a man dead in an argument over a card game in 1978 (this was the North Carolina murder charge on which Evans was being held when he shot Truesdale), had threatened credit union employees with a gun during a 1980 armed robbery, and had held a three-member prison disciplinary committee at bay with a knife in 1974, demanding a transfer.

There was also some evidence for Evans this time. His father, who dug graves 60 hours a week, told how his children had virtually raised themselves after their mother died when Wilbert was 6. Evans's wife, friends, a former employer, a co-worker, and others said he had been a good man, a good worker as a restaurant cook, even a good golfer, having learned the game as a caddy. Several prison guards and officials said he was well-behaved, hardworking, and cooperative.

There was valid evidence enough to support a jury finding that Evans was a dangerous man. But there was also a bit of a finger on the scales, to discourage any potential holdouts against death by misleading them about the consequences if the jury hung.

During deliberations, the jury sent Judge Wright a note asking what would happen if it could not agree either on death or on life in prison: "Does a split decision automatically become life?"

The honest answer would have been "yes." Virginia law clearly stated that in the event of a hung jury, the judge must impose a life sentence. But Judge Wright refused to tell the jurors that. "The flaw in that," he told the lawyers, "is ... that encourages a single person to hold out." Instead, Judge Wright instructed the jurors that "your verdict must be unanimous as to either life imprisonment or death."

This was not only unresponsive, but also misleading, insofar as it implied that a new jury would have to be convened if this one were not unanimous. It also increased the likelihood of a death sentence. Reviewing courts later held that Judge Wright's answer was nonetheless perfectly proper.

The jurors brought back a verdict for death later that afternoon, based on a finding of future dangerousness. The jurors could not have known, of course, that during the Mecklenburg prison break nearly four months later, Evans would achieve a measure of redemption-and create some new evidence on the question of his dangerousness.

The resentencing was a severe blow. Shapiro, who began pursuing a new round of appeals, says he was "burned out" by the case, which had "just swallowed up my practice; apart from the time, the money expended was just brutal." He says he spent uncounted thousands paying law students to do research, gather evidence, and the like.

Help came in late 1984. Wilmer, Cutler's Arthur Mathews, a leading white-collar defense lawyer, heard about the case at a cocktail party, from a friend who worked with Shapiro at American University's law school.

"Poor Jonathan was running out of gas trying to run this by himself and trying to make a living, and I said to have him call me," Mathews recalls. He soon decided it was "one of the worst cases of prosecutorial misconduct I'd ever seen."

Wilmer, Cutler did most of the briefing from that point on, beginning with a January 1985 petition for direct review of the 1984 resentencing, which the Supreme Court rejected with Marshall and Justice William Brennan, Jr., dissenting.

For five-and-a-half years Mathews and six other Wilmer, Cutler lawyers attacked Evans's sentence in a succession of habeas corpus petitions. They pounded on the evidence of prosecutorial misconduct and the state's delay in confessing error. They worked it into claims under the ex post facto, due process, and equal protection clauses. They claimed ineffective assistance of counsel at the first sentencing and attacked the judge's answer to the jury question at the second. They proceeded first through state and then through federal habeas corpus, seeking Supreme Court review each time.

"You can't say enough about those guys," says Shapiro. "They did incredible work, just tireless. To see the resources they threw into this case just amazed me."

But despite investing more than 5,000 hours of lawyer time (including more than 1,000 of associate Cahn's hours since November 1989), 2,000 hours of nonlawyer time, $112,000 in disbursements, and a lot of ingenuity and emotion, they lost and lost and lost.

"I will go to my grave not understanding why the judges didn't get ahold of the prosecutorial misconduct in this case," says Connell, "why someone other than Marshall didn't say, 'This stinks. What's going on?'"

NO PROFIT IN GOOD DEEDS

While the lawyers had filed clemency petitions with Governor Robb in 1985 and Governor Baliles in 1989 (both ignored them), stressing Evans's conduct during the 1984 escape, they did not claim it as a basis for habeas corpus relief until after the Supreme Court had denied their third certiorari petition this June.

Mathews explains that there was so little support in the case law for striking down a death sentence based on subsequent good deeds that he decided to focus on the other claims, which were better grounded legally.

Meanwhile, Shapiro had been stalled for more than five years in his efforts to find the kind of corroboration of Evans's account of his role during the escape that might stand up in court.

News reports had quoted the nurse who said Evans and Turner had helped her and other, unidentified hostages who credited the two inmates with saving their lives. The June 4, 1984, Richmond News Leader quoted one guard as saying, "I don't understand why all of them didn't run. I do know I owe my life, as do all the others, to Evans and Turner. If I had the money, I would hire an attorney for them and see if they couldn't be set free. Maybe they have changed. [The escaping inmates] would have killed every damn one of us." But the articles noted that the guards had insisted on anonymity because they had been warned not to talk to reporters and feared losing their jobs.

Shapiro says he tried everything he could think of to get interviews with former hostages and copies of the state police reports. He wrote the state secretary of public safety, the corrections department, the prison, and individual hostages. "I got no response, no return letters, nothing," he recalls. His formal freedom-of-information-act request for the state police reports was rejected on the ground that they were confidential.

One former Mecklenburg hostage who had left his job told Shapiro that Evans had protected the hostages but that the lawyer could not use his name because he was concerned that it would be held against him if he tried to get his old job back. "You have to understand that it's a political world out there, that the people who give us our paychecks are the governors," another correctional worker explains.

Shapiro says he has a "very strong hunch" that former hostages were discouraged from talking to him, but could not prove it.

Finally, in April 1989, one former hostage, Ricardo Holmes, called Shapiro back, and a few months later former Mecklenburg warden Toni Bair, who had become regional administrator of the Virginia Department of Corrections, agreed to ask that guards at Mecklenburg tell Shapiro what they knew.

In November Shapiro and Wilmer, Cutler associate Cahn and legal assistant Johnson interviewed eight guards and former guards, including three former hostages. All signed strong affidavits praising Evans for protecting hostages and being a model prisoner.

When the lawyers' third petition for review was rejected by the Supreme Court on June 25, 1990, they had exhausted all the usual avenues of relief. Evans was scared and upset with them, and with all their fancy theories that never seemed to win.

The emotional drain, both then and throughout the case, was enormous, says Shapiro: "I teach counseling, and I'm very attuned to lawyer-client relations, and I've got to say that put me to the test, having to give bad news to Evans and listening to his tirades. ... We provided an outlet for him, someone for him to argue with. He couldn't call up Slonaker or the judges, but he could call us, so we always suffered the brunt of his frustration and anxiety. ... I felt some relief when I was fired. Evans and I had a screaming battle on the telephone, and I've got to confess that I just screamed right back at him after several years of holding everything in."

Adds Wilmer, Cutler's Cahn: "I think every one of us every few days had to just close the door to be alone. It was an extraordinary and horrible experience."

Desperate for some way to keep Evans alive, Mathews seized on an obscure common law writ called audita querela-basically an attack on a judgment that has become inequitable because of newly arising facts. ("That was a good one," Judge Merhige noted in the October 13 oral argument. "I had to go to Black's Law Dictionary.'") Mathews used this theory to bring the Mecklenburg escape evidence into play to attack the finding of "future dangerousness" on which Evans's death sentence was based.

The Wilmer, Cutler team papered the state courts with writs from June through September, losing at every stage, and moved to federal court in October.

Judge Merhige's October 13 stay-only four days before the scheduled execution-was their first and last victory. But the Fourth Circuit made short work of it three days later, about 6 P.M. The execution was 25 hours away.

That night, while the lawyers were furiously drafting their last cert petition, Walter Walvick, a partner at Washington's Dickstein, Shapiro & Morin, was watching the World Series in bed at home in nearby McLean, Virginia. He was "beat to hell" from a late night at work.

"When the last out was made," Walvick says, "I flipped to one of the news channels, and I saw Art Mathews talking about Wilbert Evans, and he said that [Evans] was going to die and started talking about the Mecklenburg breakout and that he needed help."

Walvick, the pro bono lawyer for Willie Lloyd Turner, the other death row inmate whom hostages praised for protecting them, wondered whether Mathews had the state's investigative reports on the escape that he had at his office. (Turner's previous lawyer had obtained them somehow back in 1984.)

Walvick called Mathews, got up, dressed, said goodnight to his wife, drove to his office, picked up the thick stack of state reports, and delivered them to Wilmer, Cutler after midnight. He stayed and helped until almost 5 A.M.

Within hours Mathews, Connell, Cahn, and Shapiro had worked the most helpful of these records into their cert petition and fired a set off with a cover letter to Wilder.

All for naught. "By the time people like Art Mathews get involved it's too late," says Walvick. "The real problem is what happens at the trial. They appoint inexperienced lawyers and the procedural default rules are such that you have to litigate everything every step of the way.

"Indigent capital defendants in Virginia don't have a chance. They just don't have a chance."

THE SYSTEM SHRUGS

To Justice Marshall the real problem runs deeper than ineffective trial counsel. He said in his dissent that Evans's case showed the fallacy of the Court's "premise that given sufficient procedural safeguards the death penalty may be administered fairly and reliably."

The state and the Fourth Circuit had suggested that opening the door to challenges based on post-sentencing good deeds would deluge the courts with death row prisoners claiming they have reformed and would defeat the need for finality in death penalty litigation.

Perhaps so, said Marshall, but that's just the point. "If it is impossible to construct a system capable of accommodating all evidence relevant to a man's entitlement to be spared death-no matter when that evidence is disclosed-then it is the system, not the life of the man sentenced to death, that should be dispatched."

For the first time in a death case Marshall was dissenting alone. Justice Brennan, his fellow crusader against capital punishment, was gone. Justice David Souter, newly arrived, said nothing in his first death case.

Castigating "the indifferent shrug of the shoulders with which the Court answers the failure of its procedures in this case," Marshall concluded, "A system of capital punishment that would permit Wilbert Evans's execution notwithstanding as-to-now unre-futed evidence showing that death is an improper sentence is a system that cannot stand."

The state's answer, of course, is that we have governors for cases in which extraordinary circumstances warrant clemency. The Evans case shows what an illusory protection that is.

Douglas Wilder was for many years a strong opponent of the death penalty. He made an expedient public switch in 1984 when he first sought statewide office by running for lieutenant governor. Then he staked out a strong pro-death position in his 1989 gubernatorial campaign, to counter his Republican opponent Marshall Coleman's effort to paint him as insufficiently ardent on the need to kill killers. And as governor Wilder has pushed to extend the penalty to drug-related killings.

One need not oppose the death penalty, of course, to see the perversity of executing Wilbert Evans without even pausing to consider whether or not the cop killer had become a lifesaver.

But for a governor there are other considerations. There was Zita Truesdale, understandably repelled by portrayals of her husband's killer as a hero, who after some wavering said she wanted Evans executed. There were Gene Truesdale's buddies and other law enforcement officers, clamoring against clemency. There was the likelihood that a grant of clemency for Evans would limit Wilder's political freedom of action on the 44 others in line for Virginia's electric chair. And there were the voters, who these days want their elected officials to display the kind of zest for snuffing out criminals that will not easily be derailed by distractions like redemptive conduct in prison.

Two days after Douglas Wilder nodded and Wilbert Evans died, the governor was politicking in Massachusetts. Someone asked why he had not spared Evans. Wilder said that in light of "the history of the defendant, the crime itself, the record, and everything else," he saw no reason to "intervene and upset the judgment of the courts."

The courts (except Merhige) had made no judgment, of course, on whether Evans had heroically saved lives at Mecklenburg, or whether he deserved a break, or what lesson his execution would teach others on death row. The judges bucked those issues to the governor, who let Evans die without addressing them.

But Wilder was not in Massachusetts to talk about the likes of Wilbert Evans.

"We have gathered here today," he told a crowd at Harvard University's Kennedy School of Government, "to discuss how the right Democratic candidate-running on a 'New Mainstream' agenda and on a proven record-can win the White House in 1992."