"I can't justify why I killed those people," says Joseph Michael Giarratano, 24, short, plump, jittery. "I'm sorry I did it. I can't change it. I don't think killing me is going to change anything."
During nearly three years of waiting for electrocution in a small death-row cell in southern Virginia, Giarratano has asked to die, come within hours of it, and changed his mind. Now he fights to live.
He raises shackled hands to smoke. "The fellows here on death row , I'm real close to a lot of 'em," he says. "You build a bond. People on the streets automatically think you're an evil person. It's not true. We're human beings."
So were his victims, whose stories are filed in a Norfolk courthouse: the beauty and turmoil of human lives reduced to fingernails, hair, blood. "Stab slit . . . massive external hemorrhage . . . linear abrasion," say the medical reports. "Severe petechiae . . . bleeding from introitus . . . asphyxia by strangulation . . . sexual abuse."
Photos show them sprawled in the strange, pale grace of death: Barbara (Toni) Kline, 44, in corduroy trousers and blue jacket, her face calm, pale, lying in a pool of blood on the bathroom floor of her apartment with purse, sunglasses, keys, an 8-pack of Millers; her 15-year-old daughter, Michelle Desiree Kline, hair golden, left eye slightly open, red welts on her neck, lying across a bed, her childish face beneath its bruises rounded and serene as the face of an angel in a painting.
" Michelle started fighting and resisting me and screamed," Giarratano wrote in his confession. "I told her to shut up and I raped her. After I finished she started hollering and screaming and I told her to shut up, she wouldn't so I strangled her with my hands."
There are 1,009 people on death row in America today -- a record high--and the number increases by an average of 15 a month. Fifty-two percent of the condemned are white, 42 percent black, 6 percent other racial groups. Of the more than 1,000, only 12 are female. All are murderers except two child rapists in Florida.
All that stands between the condemned and eternity is a tangle of legal appeals as lawyers, judges and politicians argue details of the U.S. Supreme Court's 1976 decision declaring the death penalty constitutional. Should appeals fail, the executions will be by electric chair, gas chamber, gallows, lethal injection or firing squad. Thirty-five states, including Maryland and Virginia (the District of Columbia has no death penalty), drafted new laws to meet Supreme Court guidelines that only the worst criminals die and only after painstaking efforts to ensure fairness and prevent discrimination, racial or otherwise.
Nevertheless, legal uncertainty about the penalty and reluctance by authorities to impose it has put capital punishment in America today in limbo. Some experts think that while death sentences may continue to be handed down, the criminal justice system may never again efficiently implement them.
Like most of the 17 others on Virginia's death row, Giarratano has been kept alive by the legal process though his execution date was first set years ago. His appeals continue and he stands a good chance of getting off death row. As a result of delays like this, there have been only four executions in the United States since 1967, three of them of men who asked to die. Despite the 1976 Supreme Court decision, there is a de facto ban on capital punishment in the United States today.
It may not last. With public concern about crime mounting, more people want the penalty. A 1981 Gallup poll found 66 percent support it, the highest in 28 years and an increase from 49 percent a decade earlier; a Yankelovich poll put approval at 73 percent.
The Reagan administration is supporting legislation, now in the Senate, that would put time and other limits on a key legal tool used by death row inmates: the habeus corpus appeal. This allows murderers and other criminals convicted in state courts an almost unlimited number of appeals to federal courts. The administration view is shared by some influential conservative jurists. Supreme Court Justice William H. Rehnquist called the long judicial process a "mockery . . . When society promises to punish by death certain criminal conduct, and then the courts fail to do so, the courts . . . undermine the integrity of the entire criminal justice system."
Alarmed by such sentiments, death penalty opponents are braced to resist what they see as a gathering momentum to resume executions. "We are now marching quite inexorably to the point where, in one or two years, we will resume executions in some substantial numbers simply because the legal remedies will become exhausted," said Henry Schwarzschild, director of the capital punishment project of the American Civil Liberties Union. "Semi-hysteria" and a "rush to vengeance have gripped a solid majority," said a newsletter of the National Coalition Against the Death Penalty. "Every effort is needed . . . to counter the primitive urges and misinformation that lead to death penalty laws."
Opponents of capital punishment say it discriminates against blacks and the poor, forecloses the possibility of rehabilitation, fails to deter criminals, may incite violence, and is irrevocable in case of mistakes. They say life on death row is torture and therefore unconstitutional. Proponents say the penalty can be imposed fairly, prevents murderers from killing again, prevents vigilantism, deters would-be criminals generally, and specifically deters rapists and other felons from killing victims and witnesses.
On another level, those who oppose the penalty tend to do so unconditionally because it violates in some fundamental way their sense of what a civilization should be, while the proponents have difficulty imagining a moral society that would not repay its most terrible criminals with death.
When the debate moves beyond abstracts and involves real criminals and victims, the complexities multiply. The Giarratano case illustrates these uncertainties and is typical in that both Giarratano and the victims were from the lower economic strata, were of the same race, and knew one another. Also typical was Giarratano's troubled childhood and his bizarre psychological makeup.
It is a sordid tale that shows the criminal justice system at work as the system's chosen representatives go about the awesome task of deciding whether to put a human being to death.
Toni and Michelle Kline lived in Ocean View, a sandy spit of Norfolk jutting into Chesapeake Bay. Their walk-up apartment was close to the 7-Eleven where Toni clerked. The area is a mix of retired and young, Navy enlisted people, drifters. Its main street is a clutter of beach houses, restaurants, motels. A drug culture flourishes.
A former beautician, Toni was "warm" but could be "tough as a nail," said a friend, Patricia Sullivan. She "liked a beer or two," said former 7-Eleven manager Peter E. Mohrmann. "I wouldn't say she came inebriated to work, but sometimes you could see the aftermath."
Michelle, her only daughter by a failed second marriage, was "fun to be around," said Sullivan's daughter, Kathy, a classmate of Michelle's at Northside Junior High. "She liked to dance . . . . She liked animals. She wanted to be a vet . . . . She could be serious. She was very smart."
In December 1978 Giarratano, an itinerant scallop boat crewman from Jacksonville, drifted into their lives. Mohrmann said he first heard of him when Giarratano was in a quarrel in a nearby beer joint.
"Michelle adored him," said Kathy. "They always joked around and played together . . . I don't know what she saw in him."
Giarratano moved in with the Klines. He wrote in his confession that they were "just friends" and Toni let him stay a few weeks "until I went back out on a boat."
"Toni didn't have a damn thing herself but she would give you the shirt off her back," said Sullivan. "The people downstairs had kicked this Giarratano out, so she took him in." But the arrangement didn't work and Toni told Giarratano to leave.
On Sunday afternoon, Feb. 4, 1979, Toni and Michelle returned from a visit with relatives in Maryland. Giarratano was to be out by the time they arrived. Michelle went to the apartment and Toni went to work.
Giarratano confessed he went to the apartment at 8 p.m. and "Michelle let me in." He was high on dilaudid, a drug used as a cancer painkiller. "We sat around and talked," Giarratano said in his confession. They went into the bedroom, but when Giarratano tried to have sex with the girl, she refused. At that point, Giarratano confessed, he became violent, raping her and then killing her.
He remained in the apartment. "I stayed there because I knew Toni would know I was the one that killed Michelle and I wanted to keep her from talking." When Toni Kline came home, he stabbed her to death.
Giarratano took a bus to Jacksonville, walked up to a policeman and turned himself in. "It was on my mind and there wasn't no sense in running."
Police took Mohrmann to the apartment to identify the Klines. "When I saw what had transpired not only was I in awe, I couldn't believe what I saw . . . It was indescribable. I've seen a few things in my time: but so young, and senseless. Let's put it this way: chills run down your spine."
Four months after his arrest, Giarratano took his first major legal step: On May 22, 1979, for reasons that may never be known, he declined a plea bargain that would have shielded him from the death penalty and made parole possible in 20 years. Instead, he admitted the killings and pleaded not guilty by reason of insanity -- a move that meant there would be a full trial in which he could be sentenced to death.
He declined a jury. Norfolk Circuit Judge Thomas R. McNamara tried him and found him guilty of rape, first-degree murder and capital murder -- this last crime punishable by death. Later McNamara held a special hearing, as required, to decide if Giarratano should die or be given a life sentence with parole possible in 20 years.
The testimony was gripping. When Giarratano was 2 years old his father left home. His mother beat him with baseball bats. At 11 he started taking drugs. At 13 a loving stepfather died and he tried suicide. From 14 on he was in trouble with the law as a dozen psychiatrists tried and failed to help. At 16 he again met his real father in prison where both were inmates. At 19 he quit high school. At 21 he murdered the Klines.
A probation officer testified Giarratano was high most of the time on marijuana, alcohol, cocaine and dilaudid; that he was unstable, self-destructive and given to violent outbursts. Prosecution psychiatrist Dr. Miller Ryans described him as impulsive, alienated, self-centered and negativistic, but said at the time of the murders he knew what he was doing and that it was wrong.
Ryans called Giarratano "a walking, ticking time bomb." He said Giarratano told him he "wanted to kill himself and if one of my aides tried to stop him, he would make sure he would take the aide with him."
Defense attorney Albert D. Alberi asked if Giarratano might not mellow in prison so that he could be safely paroled in 20 years.
Ryans answered: "People change, but. . . the probabilities of his changing are at a minimum . . . . Being in the penitentiary itself usually does not contribute to a person being rehabilitated."
Giarratano's mother pleaded, "Don't take his life. . . . All I ask is please help him. Please be fair."
The defense said Giarratano killed the Klines in symbolic revenge against his hated mother and sister. Psychiatrist Dr. C. Robert Showalter testified he was a prepsychotic schizoid unable to express emotion except as "episodic impulse discharge . . . as though steam or pressure is allowed to build up in a confined container for a period of time, occasionally the lid blowing off . . . . Things then settle down . . . until sufficient stresses again accumulate, at which time an additional discharge of . . . aggression then ensues." In Norfolk, said Showalter, Giarratano was in "a situation which in many respects symbolically reconstituted" his early home life, which "reactivated" hatreds and brought on the symbolic murders.
Could Giarratano be cured?
"Unfortunately," Showalter answered, "this is basically a lifelong situation unless very aggressive therapy can be embarked upon, and even then it's quite difficult. . . . "
Q. "So then his prognosis . . . would be guarded?"
A. ". . . It would be difficult to mount a program of definitive psychotherapy, let's put it that way."
Q. "You say he's prepsychotic. Could he move into psychotic?"
A. "Yes. He could move into a full-blown schizophrenic deterioration."
Under the new Virginia law drafted in 1977 on the Supreme Court guidelines, the death penalty may be imposed only for first-degree murder connected with rape, robbery, kidnaping, contract killing, or the death of a policeman or prisoner.
Michelle Kline's rape-murder qualified but apparently not her mother's murder, although McNamara scolded the prosecutor for not testing the point. The law sought to prevent rapists from killing victims, said the judge: why not witnesses, too?
To sentence Giarratano to die, McNamara had to find one of two aggravating factors true: either that Giarratano, alive, was likely to kill again; or that Michelle Kline's murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery."
And he had to consider and reject as mitigating Giarratano's age and record, the possibility that he was "extremely" emotionally or mentally disturbed when he murdered, and that he might not have known right from wrong or been able to conform his conduct to law; and finally, the possibility that the victim consented to or "participated in" the crime.
After the psychiatric testimony, prosecutor Lawrence C. Lawless said there was no doubt Giarratano would murder again because he murdered Toni Kline to prevent her from talking and threatened to kill Ryans' aide. Apparently because under the law he needed to prove only one aggravating factor, Lawless didn't try to prove the other aggravating factor of "torture."
Alberi, in an impassioned plea, asked McNamara if the crime was "so awesome and Giarratano so far beyond the standards of behavior and mentality of normal human beings that the only way society can be made safe is at his death?" He argued that neither aggravating factor was true: there was reasonable doubt that Giarratano would kill again because "he has committed in his own mind subconsciously perhaps the ultimate act, retribution, revenge against his mother. He's done the thing;" and he "did not linger or punish or torture the victims."
Turning to the legally mitigating factors, Alberi said Giarratano was mentally and emotionally disturbed at the time of the murders and his ability to conform his conduct to law was impaired by drugs and his symbolic hatred of the Klines. He said Giarratano was not cold-blooded but showed remorse by turning himself in. He said Michelle Kline participated in the crime because she didn't argue over whether to have sexual contact with Giarratano but over "what kind of contact it would be."
Alberi said he wasn't arguing that Giarratano be released soon but, "You know if you impose a life sentence, he is going to be along in his years before he ever, ever sees a parole on this sentence and the parole board will not be so naive as to parole him lightly."
Following the special hearing, McNamara on Aug. 17, 1979, sentenced Giarratano to die for murdering Michelle Kline, gave him a life sentence for murdering her mother and 30 years for rape. If the death sentence were commuted to life through some court action, Giarratano could be paroled in 20 years.
The judge, in a carefully worded opinion, found it probable that Giarratano would be a "continuing serious threat to society." He wrote that there was no evidence that Giarratano's hatred or drug use caused him to murder the Klines but only that they made him "sufficiently disinhibited" to do it. In addition, Giarratano was "fully matured and for years had been living independently as an adult. . . . The court concludes that the evidence of emotional stress and reduced control, while admissible by statute and carefully considered by the court, is not of such nature as to mitigate the penalty in this case."
On April 18, 1980, the Virginia Supreme Court affirmed the Giarratano death sentence after an automatic review required under the new state law to ensure fairness. This court found the evidence "abundant and overwhelming" that Giarratano would kill again and that the death sentence was not imposed "under the influence of passion, prejudice, or any other arbitrary factor." The court said Giarratano behaved "in a logical, deliberate, evil and sinister fashion" and affirmed that he had at least several seconds for premeditation -- a point not in question in the special sentencing hearing but raised in Giarratano's appeal.
The Virginia Supreme Court also went out of its way to comment on the second aggravating factor of "torture," citing evidence of sexual abuse. "We cannot disregard the utter horror which must have been experienced by this child during the moments before her death while she was being strangled by the bare hands of the defendant in this atmosphere of violence," the court wrote.
Three days later, Giarratano wrote McNamara asking to die. "It is my decision to refuse all further appeals which is my priviledge."
McNamara set the execution for June 13, 1980.
Giarratano told the press he was "ready to go . . . . Then the hurt will be over at last. The pain and feelings I can't live with will be ended."
On June 3 Giarratano changed his mind, talked out of his death wish by Showalter and an attorney with the help of state ACLU chief Chan Kendrick.
Kendrick called Giarratano's decision "a remarkable turnaround" and said he had become "a real activist" for prison reform.
On June 12, 1980, just 37 hours before the scheduled execution, the state Supreme Court granted a stay of execution so there could be further appeals.
On Aug. 4 Giarratano, apparently in despair, slashed his right wrist with a razor blade.
A year after the aborted execution, in May 1981, the U.S. Supreme Court ruled psychiatric evidence can't be used to support a death sentence unless the criminal was warned he didn't have to cooperate with psychiatrists. Giarratano wasn't warned. His attorney said the decision gives him an additional avenue of appeal.
Those who knew the dead were deeply affected by the murders. Some had long-held opinions reinforced.
Naomi P. Colden, one of Michelle's teachers, said when the principal announced the murder over the intercom, "We had a moment of silent prayer . . . I couldn't keep from crying and it still makes shivers go over me." Yet she opposes the death penalty: "I just cannot believe in taking a life . . . . If I were on a jury, I'm not sure I could vote for it . . . . Also, I was a little upset about the supervision in the home. That contributed. I'm not taking the blame away from Giarratano but I was almost as angry with the parent as with the murderer."
Mohrmann, the former 7-Eleven manager, favors the death penalty. "As of late in Norfolk crime has increased and it becomes more violent every day. With just jail or penitentiary penalities, criminals know they'll be out after a number of years with good behavior. I don't believe the rehabilitation is working as well as it should be. And, after all, we're supporting these people in jail. But I don't favor the penalty across the board. You have to judge it on the individual merits."
Listen to Sullivan and her daughter, once friends of the Klines, as they sit in their living room. On the TV is a color photo of Toni and Michelle laughing, Toni sticking out her tongue in fun.
Daughter: "They should execute him . He probably doesn't even care."
Mother: "I don't know. I've had so many mixed emotions. At first we thought, 'Kill him, do it . . . . If they let me push the button I'd do it gladly . . . . ' Now I think he should be punished, but why let him off so easy? Let him live with it. Let it be on his conscience. The ACLU, what are they trying to prove? You know, here's a guy that kills two innocent people."
Daughter: "I just wonder if he knows what he's done, how he's hurt people."
Mother (reflectively): "You know, there have been times when I've even found myself feeling sorry for him."
Daughter: "It's a very complicated thing."
Mother: "Somebody has to be really, really sick to take a person's life, let alone two people's."
Daughter: "Maybe he'd be better off dead."
Mother: "We have so many mixed emotions about it. I feel angry he needlessly took two people we loved. I'm angry, but would I be angry enough to kill him? No. At first I felt, 'Kill him.' "
Reporter: "Well, do you believe in capital punishment or not?"
Daughter: "I'm not sure. I think these people should know that what they did is wrong. If they get life, they get parole in 20 years. That's not right."
Mother: "People like that, they might get let out."
Daughter: "It's awful to say someone should die."
Mother: "Of course it is, but what if he's let out and kills someone else?"
"Bein' on death row can be a strenuous situation," said Giarratano. "It doesn't leave a lot of hope. It can be very lonely and boring. You sit and read, listen to your radio. There's no school programs, no vocational programs. They just kind of leave it to yourself. They have a counselor, but he just never gets around to death row. We have a religious service each week. We talk to ministers and discuss our problems, let out a lot of tension, see where our heads are at . . . . If I didn't have a radio and play chess I'd go crazy. I'm on Thorazine. It doesn't do you any good. I sleep three, four hours a day. The rest of the time I'm just sitting up in the cell reading."
Virginia's 18 death row inmates live in a colorful, modern cellblock in the state's new Mecklenburg Correctional Center in a rural, wooded border area two hours southwest of Richmond. Giarratano, shackled hand and foot, was escorted by three guards to an interview in a small room near his cell, which is a 5-by-8 foot room with bed, commode and sink. Giarratano had a bushy mustache and sideburns and was jumpy, as if bursting with pent-up energy. On a blackboard behind him someone had chalked: "Change your thought pattern. Filipians 4:6-8."
Giarratano: "I killed a couple of women living with me in Norfolk the Klines . . . . I was dealing with people involved in smuggling cocaine. I was holding a pound of cocaine for somebody: I just lost my cool. I just lost control . . . ."
"Eventually they'll have to execute us . . . . you try not to think about it. You joke about it. If we don't joke about it and try not to think about it it'll just drive us crazy . . . .
"Capital punishment is not effective. It's not a deterrent. If you were to execute all of us here tomorrow, in three months you'd have the same number of inmates on death row. This is because of their way of handing out the sentence of death. There's too many loopholes. If everybody who committed murder got the death sentence and executions were carried out expeditiously, I think it might work."