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June 1, 2012

A tip for would-be Virginia murderers: kill extra victims and cut deal to escape death penalty

The cynical title to this post is prompted by this new AP story, which is headlined "Virginia inmate escapes death sentence by admitting to another killing."  Here are the details:

An inmate whose death sentence was overturned will avoid the possibility of another one after brokering a deal in which he gets life in prison in exchange for admitting guilt in another killing.  A Prince William Circuit Court judge on Thursday approved the deal to spare Joshua Andrews, 30, who was sentenced to death in 2007 for a shooting spree that left two dead and three injured in Virginia and New York.

The Virginia Supreme Court overturned that sentence in 2010 because it said two of his four capital murder convictions constituted double jeopardy, the constitutional protection against being tried twice for the same crime.  Jurors convicted Andrews of killing more than one person as part of the same act and of killing more than one person within a three-year period.

In the deal, Andrews pleaded guilty to the 2001 murder of Clayton Kendall Breeding at a Woodbridge middle school parking lot.  A jury had acquitted Andrews of that murder in 2007, but he agreed to switch his plea to guilty in exchange for a guarantee that he would be sentenced to life instead of receiving the death penalty.

“From the commonwealth’s perspective, they can do something fairly remarkable, which is to undo a jury acquittal in a capital murder case and obtain a conviction in a case that would otherwise remain unsolved,” said University of Virginia law professor Matthew Engle, one of Andrews’ attorneys.  “And the deal is, they take the death penalty off the table. That’s what makes it possible for Josh to admit his guilt.”

Prosecutors said Andrews forced three men to undress and get into a bathtub in a Dumfries-area apartment during a robbery on Jan. 2, 2002, before shooting them.  Two of them died and another survived.  After that shooting, Andrews and another man fled to New York, where they robbed and shot a convenience store clerk in Queens and shot another man in the Bronx.  They were convicted of attempted murder in those shootings. Andrews was acquitted in three other deaths, including Breeding’s killing.

The Virginia Supreme Court said that the trial court erred by excluding from mitigating evidence a poem Andrews wrote and that it improperly excluded the testimony of a social work expert on how Andrews’ horrific childhood diminished his moral culpability.  At age 8, Andrews was pushed into a shed by some kids who set it on fire. He was horribly burned and disfigured, and kids taunted him by calling him “crispy critter” and “mummy.”  Also as a child, Andrews went to visit his father on death row in Texas.  Before his father could be executed, another inmate stabbed him to death....

The court upheld Andrews’ convictions, but sent his case back to Prince William for a new sentencing, which was scheduled for June.

This story confirms my fear that often the worst murderers can escape the death penalty even in states that try to apply the death penalty seriously if and when the murderer has information or something else of value to the state with which to bargain with prosecutors.  And, disconcertingly, those defendants responsible for only killing one person or involved in a felony-murder-type event with other more culpable participants often are those who lack information that might enable them to cut a deal to avoid death.

For this reason (and others), I have long thought that the operation of death penalty could be readily reformed for the better if every death penalty state had in a strong presumption against ever bringing capital charges against any defendant responsible for killing only one person and a strong presumption for bringing (and refusing to bargain away) capital charges against any defendant responsible for the murder of multiple innocent victims.

June 1, 2012 at 12:38 PM | Permalink


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Prof B: I categorically agree that the multi-murderer/robber Andrews deserves a swift execution.

However, if you murder my two brothers and sister whilst Bill Otis murders only my Father,
the execution of Bill Otis would be more just than letting both of you go without proper punishment.

"…[I]f there is a [bias] it should be corrected to make sure more cold-blooded murders die, not less."
~~(mytemp001) Charlotte Observer

Posted by: Adamakis | Jun 1, 2012 1:31:11 PM

Adamakis --

"However, if you murder my two brothers and sister whilst Bill Otis murders only my Father,
the execution of Bill Otis would be more just than letting both of you go without proper punishment."

Correct as usual, but don't give them any ideas.

Posted by: Bill Otis | Jun 1, 2012 1:49:03 PM

"they can do something fairly remarkable, which is to undo a jury acquittal in a capital murder case"

How about that? What about respecting the jury here SLP regulars?!

Big fish having a better chance of some sort of plea bargain more than little fish is a standard fact of life that here is used at the highest levels. Given that in some states people linger on death row for decades anyway, it just might make sense to them to life if in return they would get convictions in other murders that might otherwise be unprosecuted.

Posted by: Joe | Jun 1, 2012 4:11:13 PM

The exact same process was used to give John Gardener a life sentence for two murders in California. He was arrested and charged for Chelsea King's murder, and would have most probably been convicted by jury and sentenced to death, but as part of the plea deal he confessed the murder, and provided authorities with the location of the body of Amber Dubois.

Posted by: Eric Knight | Jun 1, 2012 5:26:53 PM

Yeah, does that not violate DJ??? Isn't a guilty plea in effect a trial. It substitutes for a trial. So how can he plead guilty to something he's already been legally acquitted of... that makes no sense whatsoever. Unfortunately, who is the victimized party to complain about it. Other than common sense...

"Big fish having a better chance of some sort of plea bargain more than little fish is a standard fact of life"

And that is one of the reason why our plea bargaining system is inherently corrupt.

Posted by: Daniel | Jun 1, 2012 5:31:50 PM

It's tough to draw conclusions based on one case. The death penalty ought to be mandatory on multiple victim cases (with few exceptions). That would solve a lot of problems.

Posted by: federalist | Jun 1, 2012 7:35:53 PM

VA is the poster child for how to carry out executions and the prosecution and sentencing murders. Check death row. No one has been there longer than 10.5 years. Justice is swift and accurate. I dont' ever see the wash compost or NYSlime reporting on such facts. VA does it right...CA NC KY should take note.

Posted by: deano | Jun 1, 2012 9:14:19 PM

"And that is one of the reason why our plea bargaining system is inherently corrupt."

Unless there are mandatory prosecutions, which wouldn't be w/o problems, there would be some ability to game the system. And, plea bargaining is in place because it is deemed on balance worth it. Do we not deal with a seedy character to stop a major drug ring since it makes us feel impure?

Posted by: Joe | Jun 1, 2012 10:47:21 PM

I call BS on the claim about Virginia: http://www.norfolkfour.com/

Posted by: Calif. Capital Defense Counsel | Jun 1, 2012 10:52:30 PM

Please explain how a mandatory death penalty on multiple victim cases (with few exceptions)would solve a lot of problems.

Posted by: ? | Jun 1, 2012 11:41:03 PM


Except that none of the four was sentenced to death, making their case an odd choice in a discussion of capital punishment, in Virginia or elsewhere.

Posted by: Bill Otis | Jun 1, 2012 11:48:27 PM

"And, plea bargaining is in place because it is deemed on balance worth it."

Deemed by whom? Not me. Worth to who? Not to the truth.

Posted by: Daniel | Jun 2, 2012 1:05:12 AM

Daniel --

I'm not trying to start a fight, I just would be interested in your view: What would you think of forbidding plea bargaining as a method of resolving charges even if the defendant wants to take the bargain he's offered?

Posted by: Bill Otis | Jun 2, 2012 2:59:07 AM

The lawyers that kept the defendant alive past 18 are co-conpirators and should be arrested, tried, and imprisoned, including the feminist lawyer on the bench. Because the motive was rent seeking, violent revenge by the families of the subsequent murder victims has full moral, intellectual, and policy justification. I would like to see a list of the lawyers that protected the murderer from age 14 to 18.

The defendant should also spend all his time in prison being waterboarded to solve all his other crimes. This is a useful use of his time.

He will certainly kill again in prison. The judge accepting the plea deal should be executed after that happens.

The most morally reprehensible, and physically dangerous characters in this story are the judges. The lawyer has a real blind spot for this self evident fact. All tort immunities should end, and wrongful death suits should be allowed against the lawyers, the defense, the prosecution, the vile feminist on the bench. To deter.

Posted by: Supremacy Claus | Jun 2, 2012 6:11:07 AM

Maybe this is more what CCDC and Bill Otis were looking for:

http://valawyersweekly.com/vlwblog/files/2011/07/WolfeJohnson2011.pdf [link to opinion finding Virginia death-row inmate Justin Wolfe actually innocence under Schlup v. Delo, so the federal court could reach the merits of his defaulted Brady claims]

http://valawyersweekly.com/vlwblog/files/2011/07/WolfeJohnson2011.pdf [link to opinion vacating Wolfe's conviction and death sentence under Brady. If you don't want to read the whole opinion, here is footnote 24: "In describing why the Commonwealth's Attorney's Office does not have an open-file policy, Mr. Ebert stated the following at the habeas evidentiary hearing: 'I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided.' Tr. 110. In effect, Ebert admits here that his contempt of defendants who 'fabricate a defense' guides his perspective on disclosing information. This is particularly troubling in the case at bar where the record is replete with statements from Ebert and Conway regarding the scrutiny and credibility determinations that they made (as opposed to the jury) regarding the relevance of any potential exculpatory evidence. Essentially, in an effort to ensure that no defense would be 'fabricated,' Ebert and Conway's actions served to deprive Wolfe of any substantive defense in a case where his life would rest on the jury's verdict. The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process. See, e.g., Kyles v. Whitley, 514 U.S. 419, 439-40 (1995) ('Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial's outcome as to destroy confidence in its result. This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence ... [a]nd it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. ")]

http://valawyersweekly.com/vlwblog/files/2012/03/Wolfe-amicus-brief.pdf [link to amicus curiae brief of 34 former prosecutors, judges, and senior law enforcement officials supporting Wolfe's position against Virginia's appeal of the habeas decision]

Virginia's appeal was argued last month. The Fourth Circuit hasn't issued an opinion yet.

Posted by: arfarf | Jun 2, 2012 9:47:15 AM

"Not to the truth."

I feel like Pilate here. What is "the truth"?

What if the only way to find "the truth" is to offer a plea?

It is deemed on balance worth it to those who have allowed it for quite some time. Samuel Walker in "Sense and Nonsense About Crime" twenty years ago noted how ending plea bargaining is hard to imagine in actual practice.

I'm surely not going to say it can be abused and unlike some here I appreciated a recent USSC ruling because it provided a check on a practice the dissent sneered at but would just let continue anyhow but I really don't see how you can actually not have it at all. The result is impure but such is the nature of criminal justice.

Posted by: Joe | Jun 2, 2012 11:12:59 AM

Otis Bill -

The threat of imposition of the death penalty on the four innocent boys/men comprising the Norfolk Four is part of what caused their wrongful convictions and imprisonment.

It is the mindset of people like you and the jerk-off cops and prosecutors in the Norfolk Four case and the Wesr Memphis Three case, etc., that leads to these tragic wrongful convictions and imprisonments.

There are thousands more innocent men and women in prison. Yet, you continue to beat the drum in favor of incarceration nation.

Try to re-calibrate.

Posted by: Calif. Capital Defense Counsel | Jun 2, 2012 12:42:59 PM

@Bill and @Joe

I start from first principles. My first principle is that a court of law's most basic function is truth seeking. In this regard it is no different than the scientific method. Where a court of law differs from the scientific method is in its method of truth resolution. The legal system is predicated on an adversarial system while the the scientific method is based upon a notion of repeatability, replication, and consensus.

"What would you think of forbidding plea bargaining as a method of resolving charges even if the defendant wants to take the bargain he's offered?"

I think all plea bargaining should be banned. Since when as a society have we taken a man's word for anything. If a scientist offers a result, in academia we test that result through the scientific method. If a witness testifies to a fact on a stand, that testimony is subject to the adversarial process. Fundamentally, plea bargaining is one aspect of what the 5A was designed to ban. For a man who pleads guilty has incriminated himself; he has in the most basic way testified against himself. That should not be allowed. It's immaterial that most of the people who plead guilty are "actually guilty". As I said before I'm as unmoved by the notion of "actual guilt" as I am of "actual innocence".

"What if the only way to find "the truth" is to offer a plea?"

Truth is not an end-result. It is a label we stick on the outcome of a process. We should not allow people to plead guilty because that is simply not the system we use to arrive at a thing called "truth". In fact, we don't use that system anywhere else other than in plea bargaining. We don't use that method of truth seeking in academia, we don't use that method of truth seeking in politics, and for the most part we don't even use that method of truth-seeking in the law.

"how ending plea bargaining is hard to imagine in actual practice."

The South said the same thin about slavery etc etc. "it's hard" is an excuse, not an answer.

Posted by: Daniel | Jun 2, 2012 2:35:19 PM

Daniel --

Personally, I never liked plea bargaining for many of the reasons you note. It is by definition a compromise, and compromises -- particularly those that express themselves in less than fully forthcoming statements of fact -- do indeed, as you say, poorly serve the ascertainment of truth.

It was thus most unfortunate that, in Lafler, bargains morphed from a necessary evil prompted by squeezed resources into a semi-Constitutional right to be attended by the usual gaggle of rules.

Still, that's the way the case was decided, so we move forward. Unlike some who post here, the fact that a legislative or judicial decision does not go as I would prefer does not inspire me to launch perpetual complaining. I found out some time ago that acceptance of adversity is a necessary component of growing up. Tantrums are fine -- but only if you're three.

Posted by: Bill Otis | Jun 2, 2012 3:29:20 PM


"There are thousands more innocent men and women in prison. Yet, you continue to beat the drum in favor of incarceration nation."

That is because "incarceration nation" has helped save, not thousands, but millions of citizens from being victims of murder, rape, robbery, aggravated assault, carjackings, theft and the other wonderful undertakings of your and many other defense lawyers' clients. I have previously put up the startling numbers of crime reduction over the years of "incarceration nation" and will not do so again since all you have to do is look it up. I have also put up the studies showing that incarceration was the single most important factor (a quarter or slightly more) or the massive decrease in the numbers of these crimes.

And let's just end the charade, shall we? Your rote invocation of the allegedly innocent is just cover for your desire to change the system so that it will be increasingly incapable of punishing the overwhelming mass of defendants you know full well are guilty. That incapacity, and the resulting increase in crime it will bring about (as it did in the sixties and seventies) is exactly what you seek.

There is no system on this planet, now or ever, that will ALWAYS avoid the occasional erroneous conviction. If you were ever to become an adult, you would understand that settling on a particular criminal justice system involves a choice among trade-offs. The trade-offs we have now result in some erroneous convictions and some erroneous acquittals. We could change the mix by tilting the rules one way or the other, sure. But the other thing we have now is a joyous overcoming of the skyrocketing crime and crime victimization of the sixties and seventies. Our citizens now enjoy a lower crime rate than they have at any time for more than 50 years.

I think that's a good thing -- indeed a wonderful thing -- and would like to see it continue. If you're waiting for me to "re-calibrate" that opinion to join you in banging the drum for a return to the failed policies of the past, and to more and more crime victims, you'll be waiting a long time.

Posted by: Bill Otis | Jun 2, 2012 3:49:41 PM

I respect your position, Daniel, but all that philosophizing doesn't change that in certain cases the defendant will not share important information ("truth") w/o a plea bargain. In effect, you are willing to sacrifice there for an ideal. Few institutions, even the best, are important over everything else.

And, it might not be the Nazis, but some Godwin's law might be appropriate to comparing plea bargaining when the defendant wants it to obtain years less (or even stop an execution) to chattel slavery.

In our personal lives, we at times agree to things if in return the negative result will be less problematic. And, I don't see the comparison to academia. How is that not apples and oranges? In academia, "pleas" could be used in hearings. To obtain "truth" (information), sometimes we do less than ideal things, like buying it from seedy characters.

I guess we can try everything. Sorta like the 18th Century idea of trials, with lots less protections, no defense attorneys and so forth. I guess that is one way to move thru the docket. I appreciate the reply though.

Posted by: Joe | Jun 2, 2012 6:17:00 PM

It is not only the threat of death that can get people to plead guilty, look at the Central Park jogger case. The teenagers in that case plead guilty or confessed after being threatened only with limited jail terms. If the Norfolk Four case can be used as grounds for the abolition of the death penalty then it seems the Central Park Jogger case can be used to justify the abolition of all prison sentences.

Posted by: MikeinCT | Jun 4, 2012 2:37:36 PM

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