A Virginia judge yesterday cleared the way for Alexandria prosecutors using a new state sentencing law to seek to reimpose the death penalty on Wilbert Lee Evans, convicted of murdering a deputy sheriff during a jailbreak two years ago.
Alexandria Circuit Court Judge Wiley R. Wright Jr. rejected Evans' claim that Commonwealth's Attorney John E. Kloch should be barred from seeking a new death sentence because Kloch "knew or should have known" that information about Evans' criminal record, given to the jury that recommended his electrocution, was misleading and erroneous.
Wright vacated Evans' original death sentence in April after the Virginia attorney general's office, in an unprecedented action, admitted error in the sentencing procedure.
Wright yesterday rejected, however, defense arguments that state officials intentionally delayed admitting the errors until emergency legislation enabling Kloch to seek the death penalty again had taken effect. Under the earlier Virginia statute, a prisoner whose death penalty was set aside was automatically resentenced to life imprisonment.
Wright said yesterday the evidence "failed to demonstrate" that Evans' constitutional rights had been violated.
"It's a shame," said Jonathan Shapiro, Evans' chief attorney, after yesterday's day-long hearing. "In a rush to send someone to the electric chair, people can't follow the rules. It's death at any cost." Shapiro said yesterday's ruling will be appealed.
Kloch, calling allegations of governmental misconduct extremely serious, said he was "happy it was resolved in our favor."
Wright set Oct. 20 for a hearing to schedule Evans' resentencing trial.
Yesterday's court testimony centered on three Wake County, N.C., court documents that figured prominently in Evans' sentencing hearing in June 1981. Shapiro contended the records, at first glance, indicated that Evans had assaulted a police officer with a knife in 1964, and was involved in two other assaults in Raleigh. But a closer examination of the papers showed they represented one assault case and not three, Shapiro argued.
Shapiro also alleged that Evans was never convicted of the assault against the officer and that Kloch knew it, but permitted the jury to think otherwise.
Kloch testified yesterday that he knew the records were misleading, but said he had pointed out the possible confusion to two court-appointed attorneys representing Evans at the time. The attorneys, he testified, told him that they would clear up the misunderstanding with the jury.
Lawyers E. Blair Brown and Stefan C. Long contradicted Kloch's testimony, saying it was Kloch who had agreed to clarify the records for the jurors. No one sufficiently explained to the jury that Evans' criminal record was not as extensive as it appeared to be, Shapiro argued.
In other testimony, Assistant Attorney General Jerry P. Slonaker denied that Virginia officials had intentionally delayed the state's admission that Evans' sentencing was flawed.