Letter by Gail Marshall to Parole Board
(May 5, 2003)
RE: Parole Board Hearing for Jens Söring
Dear Parole Board Members:
My name is Gail Starling Marshall. I graduated Order of the Coif from the University of Virginia Law School in 1968 and taught on the faculty there from 1968 to 1972, when I joined the Washington, D.C. law firm of Hogan & Hartson. After becoming partner there in the Litigation Department, I left to become Deputy Attorney General of Virginia in Richmond, a post I held for eight years (1986-1994). I returned then to Rapidan, Virginia, where I established a private practice (including the office of Town Attorney for the Town of Orange). I also teach a course in Pre-Trial Procedures at the University of Virginia Law School as an adjunct professor.
I write to tell you that there have been only two occasions in my thirty-five years of practice when, after a thorough investigation and review of the trial transcript of an individual convicted of a heinous crime, I have concluded, to a moral certainty, that the person was innocent of the crime for which he was convicted and serving time.
The first such incident occurred in 1993-1994, when my duties as Deputy Attorney General included review of the work of the Criminal Litigation Section and, in particular, a review of the voluminous record of one Earl Washington. All of his appeals and habeas litigation were over and the time was approaching to set the date for his execution. Mr. Washington had confessed to the rape-murder for which he was set to die, although at trial he had recanted that confession. The other evidence against him was circumstantial. There were no eyewitnesses other than the victim, who died shortly after the attack, and two small children too young to testify. Mr. Washington was borderline mentally retarded and had been involved in one prior incident of assault. A close review of the notes of the interrogations (unfortunately there was no videotape) led me to the conclusion that the "correct details" of his confession were either suggested (perhaps unintentionally) by the interrogators, were available from public information in the news or could easily have been "guessed" by Mr. Washington. Moreover, there were also blatant errors in some of his "details," e.g., he identified the victim as black when in fact she was white; he identified an apartment at the wrong end of the complex as the scene of the crime; he stated that no one else had been at home at the time the crime took place, when in fact two small children had been present. Nevertheless, based largely on his recanted confession, he was convicted and sentenced to death, and his appeals and habeas petition (the latter by one of Virginia's most outstanding trial attorneys) were all denied.
You no doubt know the end of this story. The Attorney General (Steve Rosenthal) voluntarily agreed to submit forensic evidence (Q-tip swabs from the rape victim's vagina) to DNA testing that was not available at the time of trial. This was before such testing was legally required when requested. This test and a subsequent and more sophisticated and definitive DNA test proved conclusively that Mr. Washington was not the perpetrator of this horrendous rape-murder, and Mr. Washington is now a free man.
The second occasion involved Jens Söring. After I left the Attorney General's Office, I was asked by a friend who was also a friend of Jens's father, Klaus Söring, if I would be willing to review Jens's case. I spent many hours at the Bedford courthouse reviewing the voluminous file, including the lengthy transcript of the three-week trial, the physical exhibits, the pretrial and post-trial motions, the forensic evidence, taped newscasts and the trial and transcript of Elizabeth Haysom, daughter of the murder victims and the principal witness against Jens at trial. As with Mr. Washington, there was a confession, and, as with Mr. Washington's, it contained both correct and erroneous "details."
But apart from the confession and the testimony of Elizabeth Haysom, who had already pled guilty as a principal in the murders and was due to come up for a parole hearing shortly after Jens's trial, the evidence was extremely thin and circumstantial: no eyewitnesses, no fingerprints, no DNA, no weapon recovered or traced to Jens. Although the prosecution tried to bolster its case with "scientific evidence," such evidence was remarkably weak, so weak that a disinterested citizen who had been a forensic expert wrote a letter to the editor pointing out the sham nature of the state's case. The sockprint smeared in blood inside the house, of course, had no "dermal ridges" or identifying marks that could link them to any particular individual, and even the internal police report that Jens's trial attorney failed to put into evidence stated that these prints were those of a "woman or a small boy." Any number of true experts could have been found to tell the jury that this print was too small to have been Jens's, yet the defense counsel called no rebutting expert. In later appeals the Attorney General himself concluded that the sockprint evidence was "inconclusive"; yet jurors in post-verdict interviews pointed to this particular evidence as convincing them that Jens had been present. Even the trial judge refused to recognize the state's witness as an expert, but without objection by defense counsel the witness was allowed to testify falsely that these prints showed "correspondences" that scientifically could be linked to one person: Jens Söring.
Similarly with the tiny blood samples (too small to subtype): one spot of Type O was found. It is true that this is Jens's blood type, but it is also the most common type, found in a full forty-five percent of the general population. It was not found in a room where the bodies were located. In contrast, a type of blood shared by Elizabeth and only ten percent of the general population was found on a damp washrag in the kitchen, where Mrs. Haysom had been stabbed.
Jens Söring was not successful at his trial or on appeal. I was, however, painfully aware from Earl Washington's case that confessions are sometimes false and that juries sometimes make mistakes. Having reviewed videos of the trial, I could easily see that this arrogant, smart-aleck German kid made a very bad, unsympathetic witness at trial. On top of this, in order to believe Jens, the jury had to disbelieve Elizabeth Haysom, the local girl from a prominent and well-known Lynchburg family, who now appeared contrite and tearful on the stand. It is well established too that the murder of a parent by his or her own child is one of the most horrific crimes imaginable to us. Clearly the jury chose a verdict that did not require them to go down that difficult path.
I undertook a six-year representation to present Jens's case in habeas, a case I argued in the Circuit Court of Bedford, twice in the Virginia Supreme Court, and in the federal district and circuit courts. Again, these efforts were ultimately unsuccessful. While acknowledging our arguments that both Brady rights (through the prosecution's failure to disclose before trial state-held exculpatory evidence) and Edwards/Miranda rights (through three days of questioning by Bedford officials while Jens was held incommunicado in London without counsel) were not scrupulously honored by the state, the appellate courts denied relief, speculating that the jury had other evidence (e.g., the "confession") and would not have been swayed, even if these errors had not occurred. Other claims were deemed "defaulted" because the trial counsel (who has since been disbarred) had not adequately preserved the issues by objection at trial.
Our system is not, and cannot be expected to be, infallible. Nor can our appellate courts be charged with correcting all trial error. They operate, as they must, with strong presumptions that the trial has been fair and unprejudiced. All this being said, we all know that inevitably mistakes are made. And some, like the present, cannot be corrected by more recent DNA technique or other forensic "silver bullets."
This Parole Board, is, however, an important part of our overall system of justice on which the people rely, and this Board has the power, as the legislature has given them, to decide after a specified portion of the original sentence has been served, that further incarceration is not necessary for, or likely to serve, the legitimate purposes of punishment (retribution, deterrence and rehabilitation).
You may or may not believe as I do that we have incarcerated an innocent person for this hideous crime. You may or may not believe that a jury would find it almost impossibly difficult to take the word of an arrogant German kid over that of the daughter of a local, well-respected family, especially with the state's acceptance of her plea agreement and when the public statements recorded in the media made by the Judge, also a well-respected local figure, appeared to vouch for her credibility over his. You may or may not believe, as I do, that a lawyer with stronger investigative and trial skills as well as a modicum of knowledge of Virginia procedure could have persuaded the jury to reach a different verdict.
But what you must believe, because it is undisputed, is that this prisoner has a stellar record during his imprisonment and has never been charged with any other violent crime, either before or after his incarceration. Moreover, his prison record does not merely reflect the negative status of keeping himself "clean" (of drugs and infractions). It is the record of a man who has matured incredibly since he was first imprisoned at age nineteen and who has used his time not to be bitter or angry, but to read, to think, to write and above all to help others in any small way that his restricted circumstances allow.
Finally, as you are aware, Jens Söring's diplomatic and student visas are no longer valid. Because of his conviction, if paroled, he would immediately be deported to his home in Germany. He would be sent, not over the border, but overseas. His family (those who remain, his mother having died while he was in a Virginia prison) are in Germany; he has no desire whatsoever to return to the United States and present border control assures us that would not happen.
I am sure you agree that if there is almost certain denial of parole to those who were convicted before the legislative "no parole" laws were adopted, the words "eligible for parole" would have no meaning. These words must be made true not only as written words in the law but in the practice of this Board in judiciously using its discretion to grant parole in appropriate cases. Surely this is one. I hope you will agree.
Gail Starling Marshall
October 31, 2018