Alexandria prosecutor John E. Kloch knew that portions of a murder defendant's criminal record, used to convince a jury to sentence the man to death in 1981, were false or misleading, according to court papers.
The Virginia Attorney General's office in 1983 asked for a retrial of the defendant, Wilbert Lee Evans, citing the flawed evidence. But the office maintained that Kloch had been unaware of the discrepancies.
According to court records, a Kloch deputy, Assistant Commonwealth's Attorney S. Randolph Sengel, alerted Kloch a month before the original trial that North Carolina records pertaining to Evans were erroneous or incomplete. Kloch said yesterday he knew that some of the evidence he submitted in 1981 might be misinterpreted, but that at the time he alerted the defense attorneys to the confusing records. It was their duty, Kloch said, to challenge the veracity of the records.
The accuracy of Evans' criminal history was crucial because the Alexandria jurors were asked to weigh Evans' "future dangerousness" in deciding whether he should be executed in the electric chair.
Evans, convicted of shooting an Alexandria deputy sheriff in a getaway attempt at the city jail, was resentenced to death March 7, 1984, by a second jury under a new Virginia statute. The U.S. Supreme Court on Monday let that sentence stand.
Justice Thurgood Marshall dissented, noting "that the state prosecutor [Kloch] later admitted that he knew at the time he introduced these records into evidence that two of them were false."
At the time of Evans' first sentencing, Virginia law required that all inmates whose death penalties were overturned be resentenced to life in prison.
Two weeks before state officials admitted error in Evans' case, however, a new law took effect that permitted a new capital penalty to be imposed.
Lawyers for Evans argued unsuccessfully to the Supreme Court that applying the new law to Evans violated his constitutional rights to equal protection and due process.
Questions about Kloch's handing of the sentencing have sparked concern this week because the prosecutor is under consideration for a vacancy on the Alexandria Circuit Court created by the recent death of Albert H. Grenadier.
At issue in the original sentencing were three charges against Evans, all presented by Kloch as convictions.
North Carolina authorities later confirmed that one charge -- that Evans had assaulted a police officer with a knife -- had been dropped. Two others -- "engaging in an affray with a knife" and "engaging in an affray with a deadly weapon" -- arose from a single incident and were on appeal at the time of Evans' initial Alexandria sentencing.
Kloch, 44, said yesterday that he has always maintained he knew the two convictions he introduced as evidence were still on appeal. He said he was not sure why the Virginia Attorney General's office told a state judge in 1983 that Evans deserved a new trial because misleading evidence was introduced "unbeknownst to the prosecution."
"I did nothing wrong, nothing unethical. This has been in the record for a long time . . . . I think it is unfair to bring it up now," Kloch said.
Kloch said that after he introduced the convictions into evidence, but just before sentencing, he told Evans' court-appointed attorneys, Stefan C. Long and E. Blair Brown, that the convictions were on appeal.
Long and Brown both denied later that Kloch indicated to them that Evans' criminal record was not as extensive as it appeared to be.
"It's a factual dispute," Kloch said. "I say 'Yes, they did.' They say, 'No you didn't.' "
"If I had done something wrong, there would have been a complaint before now," Kloch said. "Everybody makes mistakes . . . . With 20/20 hindsight now, I can say it was an error in strategy. I would have done it differently. But I didn't do anything wrong."
Michael Campilongo, the president of the Alexandria Bar Association, which on May 2 will endorse a candidate for the Circuit Court judgeship, said yesterday, "I can only infer that this error was a mistake and not done with a wicked heart and evil intent."