A federal appeals court panel yesterday reversed a stay of execution for Wilbert Lee Evans, condemned for killing an Alexandria sheriff's deputy, renewing the possibility that Evans will be put to death in the electric chair tonight in Richmond.
The three-judge panel of the 4th U.S. Circuit Court of Appeals vacated the Saturday ruling of U.S. District Judge Robert R. Merhige Jr., who said Evans deserved a hearing to determine whether his sentence should be reduced because he helped save 14 hostages in a 1984 prison uprising at Virginia's Mecklenburg Correctional Center.
Evans's attorneys, who have filed a clemency petition with Gov. L. Douglas Wilder, said they would appeal the 4th Circuit's ruling to the U.S. Supreme Court this morning.
"Unless we get the Supreme Court to reimpose the stay that Merhige gave us or unless Governor Wilder grants clemency, the execution will go forward tomorrow night," Authur F. Mathews, one of Evans's attorneys, said last night.
Evans, 44, of Raleigh, N.C., shot to death Deputy William Gene Truesdale in a failed 1981 escape attempt from Alexandria's former jailhouse in Old Town. An Alexandria Circuit Court jury convicted him of capital murder because his victim was a law enforcement officer and sentenced him to death because they predicted he posed a continuing danger.
Evans's supporters argued that he saved the lives of guards and nurses taken hostage in the Mecklenburg incident, thereby proving that the Alexandria Circuit Court jury erred when it judged him to be a threat to society.
In yesterday's 10-page opinion, the appeals panel unanimously agreed with Senior Assistant Virginia Attorney General Donald R. Curry, who maintained that Merhige's opinion usurped the power of Virginia juries to sentence criminals and compromised the right of governors to grant clemency.
"We may not freely substitute our own judgment for that of sentencing juries or state executives, nor may we thereby throw into question every capital conviction resting on the aggravating circumstance of future dangerousness," the judges wrote.
The panel concluded that "while petitioner has every right to seek clemency, this is not the proper forum for that appeal." Joining in the opinion were U.S. Circuit Court Judges Sam J. Ervin III, Kenneth K. Hall and J. Harvie Wilkinson III.
Mathews said the appeals panel skirted "80 percent" of the issues raised in Merhige's ruling. He added that he would argue before the Supreme Court that the state is violating Evans's constitutional right to defend himself by refusing to allow a hearing on whether Evans's role in the Mecklenburg uprising can be factored into his sentence.
Hostages taken in the 1984 incident have testified in affidavits that Evans helped calm six armed inmates who were attempting to escape from the Mecklenburg facility. Evans said he was able to reason with the inmates, telling them it would be more difficult to negotiate for their release if any of the guards or nurses were harmed.
Mathews also expressed confidence that should Wilder have the opportunity to consider Evans's case, he would not be swayed by political considerations or any popular sentiment for a hard-line system of justice. Wilder (D) is considered by many political analysts to be a viable candidate for national office.
"I have to assume that Governor Wilder is a conscientious, honorable, straight-shooting guy," Mathews said. "I have to believe that he will call it as he sees it and that he will not consider political implications at all."
Members of the Virginia Association to Abolish the Death Penalty said last night they would begin a fast on Evans's behalf. The organization also has scheduled a candlelight service at St. Peter's Catholic Church in Richmond, a rally on the state Capitol steps and a march to the State Penitentiary before the scheduled 11 p.m. execution.
Virginia last executed a prisoner in July. The state has executed 10 men since the Supreme Court reinstated the death penalty.