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  •   Death Sentence Upheld in Evidence Dispute

    By Joan Biskupic
    Washington Post Staff Writer
    Friday, June 18, 1999; Page A2

    Anne Stoltzfus at first told police she couldn't identify the African American woman who was abducted from a Harrisonburg, Va., shopping mall on Jan. 5, 1990. She said she wasn't sure she could identify the white men who did it. At one point, she said she didn't even remember being at the mall.

    Nonetheless, a few months later, after thanking a detective for helping her make "the associations that you helped me make," Stoltzfus testified at the trial of Tommy David Strickler and identified him as the ringleader in the abduction and murder of Leann Whitlock, then a sophomore at James Madison University. She testified that she had seen Strickler "pound on" Whitlock's car, yank the door open and jump in. She said she had noticed Strickler in the mall earlier and had sensed that he was dangerous. And she noted, "I have an exceptionally good memory. . . . I have absolutely no doubt of my identification."

    Jurors never heard about Stoltzfus's earlier difficulties remembering the incident; prosecutors had kept them secret from the defense attorney. In June 1990, Strickler was convicted of murder and sentenced to death.

    Yesterday, while acknowledging that the evidence wrongly withheld by prosecutors might have altered Strickler's fate, the Supreme Court said that his execution could go forward, ruling 7 to 2 that Strickler failed to show a "reasonable probability" that his death sentence would have been different had the evidence been disclosed.

    The decision was remarkable in its frank admission of how close Strickler came to eluding the ultimate punishment, as well as for the liberal justices who wrote and signed it demonstrating how much to the right the court as a whole has moved over the past decade.

    The question was "close," Justice John Paul Stevens said as he read portions of the court's opinion from the bench. The majority said that discrediting Stoltzfus's testimony "might have changed the outcome of the trial," and that there was a "reasonable possibility" (as opposed to "probability") that Strickler would have been spared. Joining Stevens were Clinton appointees Ruth Bader Ginsburg and Stephen G. Breyer, as well as more conservative jurists: Chief Justice William H. Rehnquist, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

    In a stinging dissent, Justices David H. Souter and Anthony M. Kennedy noted that just one juror's reservations about the Stoltzfus testimony could have saved Strickler from the death sentence.

    "Her evidence presented a gripping story," Souter wrote. "Its message was that Strickler was the madly energetic leader of two morally apathetic accomplices, who were passive but for his direction." (Strickler's main partner in the crime, Ronald Henderson, was sentenced to life in prison.)

    Strickler's lawyer, Miguel A. Estrada, and defendants' rights advocates criticized the decision as encouraging prosecutors to violate constitutional due process. Estrada said the ruling goes to the core of people's "fears about what the government can do to you . . . in effect, make up the evidence."

    "I think it is very disturbing," said Steven Shapiro of the American Civil Liberties Union, "that the court would uphold the death sentence when all nine justices agree that the conviction was tainted by missing evidence."

    A spokesman for the state of Virginia praised the culmination of years of court hearings and said authorities would immediately set a new date for the execution. "Hopefully this will be the last chapter of the nightmare Leann Whitlock's family has been living at the hands of Tommy Strickler for the last 10 years," said David Botkins, press secretary at the attorney general's office.

    The victim's mother, Esther Whitlock, said yesterday she is relieved by the Supreme Court's decision. "I really believe the case long ago ceased to be about us and our daughter," Whitlock said when reached at her home last night. "It's about Strickler and his rights. . . . She didn't have any rights."

    At Strickler's trial, numerous people gave testimony connecting Strickler to Whitlock's death, but Stoltzfus was the key eyewitness. She did not come forward to police until after an acquaintance of Stoltzfus named her as a possible witness.

    Prosecutors are supposed to disclose all material that would be favorable to criminal defendants, under a series of Supreme Court decisions, the most important being the 1963 Brady v. Maryland. That decision said suppression of favorable evidence that is material to either the guilt or punishment of a defendant violates due process of law.

    Strickler did not learn of the evidence undermining Stoltzfus's credibility until 1996, when he was challenging his case in federal court. Based on the discovery of Stoltzfus's earlier statements, a federal district judge ruled that Strickler's case had been prejudiced.

    But the U.S. Court of Appeals for the 4th Circuit reversed, saying that Strickler was too late in raising his so-called Brady claim but also arguing that even had Stoltzfus's statements been available to the defense, the other evidence against Strickler overwhelmingly supported the conviction and death sentence.

    Yesterday, the Supreme Court differed but not to a great enough extent to offer Strickler a reprieve.

    "Without a doubt, Stoltzfus' testimony was prejudicial," Stevens wrote in Strickler v. Greene. "Discrediting her testimony might have changed the outcome of the trial."

    But Stevens added that the standard for overturning a sentence because of exculpatory evidence is high: A defendant "must convince us that there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense."

    Staff writer Craig Timberg contributed to this report.

    © 1999 The Washington Post Company

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