Excerpts from 1991 Petition for Conditional Pardon Petition

Pp. 30-31 

“As we learned the truth about Mr. Giarratano’s life history, about his frailties and vulnerabilities, and about his strengths, we began as well to wonder about the reliability of his confessions.  The crime to which he confessed seemed fundamentally inconsistent with the kind of person Joe Giarratano actually was.  No one who cared about him and knew him well prior to the crime could believe that he was capable of committing it.  Further, we learned more and more about gaps in Mr. Giarratano’s memory.  As we followed out these instincts, we realized that no one had ever done this before in Mr. Giarratano’s case.  No one had ever started at sum zero, cast aside the reflexive presumption that the confessions were true, and taken a critical look at them, at the congruence between the confession and the physical and crime scene evidence, and at the evidence of his guilt independent of the confessions.

“As the preliminary review of Mr. Giarratano’s case may have already made clear to the Governor and his staff, Mr. Giarratano’s confessions can be divided into two categories.  One, given in several statements to officers in Jacksonville, Florida where he turned himself in, had Mr. Giarratano killing Barbara Kline first in an argument over money, then killing Michelle Kline to remove her as a witness.  In this category, there was no harm done to Michelle—i.e., she was not sexually assaulted—before she was killed.  The second category, given to Norfolk officers two days later, did an about face on these facts.  In this confession, Mr. Giarratano said he first raped, then killed Michelle Kline, and upon being discovered in the apartment thereafter by Barbara Kline, killed her.  Just a week after giving this version of events to the Norfolk officers, Mr. Giarratano was sent to Central State Hospital for evaluation of his competence to stand.  While at Central State, he lapsed into his original version of the crime, asserting that Barbara Kline was killed first, Michelle Kline thereafter, and that he had not raped Michelle.

“During the trial and for several years thereafter, no one seemed to be troubled by Mr. Giarratano’s series of reversals about the events of the crime.  The version given to the Norfolk officers at least fit two of the material facts documented by the medical examiner—the likelihood that Michelle was raped and the sequence of the Kline’s deaths—so the Norfolk confession was accepted as the operative confession.  The contradictions concerning the most basic facts of the crime within Mr. Giarratano’s confessions seemed to trouble no one.  All the participants in the trial assumed that Mr. Giarratano was guilty even if he was unable to get the details straight.”

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Petition P. 43 

“Accordingly, the information about which Mr. Giarratano was accurate prior to his contact with the Norfolk officers certainly would have been known by the killer.  However, it is not information that could have been known only by the killer.  The information about which he was inaccurate—the sequence of the murders—would have been known by the killer.  The information that he disclosed prior to contact with the Norfolk officers, therefore, does not establish that he committed the murders.  To the contrary, it leaves reasonable doubt about whether he was involved in the killing of Barbara and Michelle Kline.

“The next step in analyzing the reliability of Mr. Giarratano’s confessions is the examination of the confession provided to the Norfolk police.  The two most striking facts about the confession to the Norfolk police are that Mr. Giarratano said that the murder of Michelle Kline preceded the murder of Barbara Kline and that Michelle was sexually assaulted and raped prior to her murder.  Both of these facts were consistent with the crime scene evidence.  However, since Mr. Giarratano inaccurately reported the sequence of the murders to the Jacksonville officers and mentioned nothing of the murders about Michelle having been raped, the question is whether Mr. Giarratano produced these facts on his own or was prompted to produce them by information provided by the Norfolk police officers.  There is no conclusive answer to this question, but the great weight of the evidence is that Mr. Giarratano did not produce these facts on his own.”

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Petition, P. 53

“The next step in analyzing the reliability of the confessions is to examine the congruence, or fit, between the details recounted in the confessions and the physical and crime scene evidence.  If there is a significant incongruence, the theory that Mr. Giarratano’s confessions were based on imagined, rather than remembered events, is further confirmed.  If, however, there is congruence, this theory may be called into question.  Our analysis has revealed significant incongruence.  Mr. Giarratano was inaccurate with respect to a number of details in the Norfolk confession:

He confessed that he strangled Michelle Kline with his hands.  However, in an  independent review by Dr. John Smialek, the Chief Medical Examiner for the State of Maryland, of Dr. Faruk Presswalla’s autopsy findings establishes that it is unlikely that Michelle was strangled manually.  The complete absence of the hallmarks of manual strangulation—“discrete bruising produced by the assailant’s fingers and fingernail marks, among others”—in combination with “the pattern of injuries on the face and neck, both externally and internally” which was reported by Dr. Presswalla, led Dr. Smialek to conclude that the strangulation was most likely accomplished “by a broad object such as a forearm (a type of ‘chokehold’).” Not by the use of the hands.”

Petition, Footnote 12, Pp. 53-54

“In the field of forensic pathology, only two types of homicidal strangulation are recognized, manual or “ligature.”  Strangulation by ligature is strangulation by anything other than the hands, such as a rope, cord, or a chokehold of the type described by Dr. Smialek in Medical Legal Investigation of Death

(Footnote 12)

“Examination of the autopsy report concerning the death of Michelle Kline reveals that the initial findings of Dr. Presswalla were the same as the findings on review by Dr. Smialek.  Initially, Dr. Presswalla diagnosed the strangulation of Michelle as having been accomplished by “partial ligature.”  Thereafter, following the interrogation of Mr. Giarratano by the Norfolk officers, in which Mr. Giarratano said the strangulation was accomplished manually, Dr. Presswalla changed his diagnosis to read “strangulation either by partial ligature with a metal choker necklace or manually.”  There is nothing in the autopsy report, such as additional laboratory results or physical findings that would explain why the initial diagnosis of strangulation by partial ligature was changed to include a diagnosis of strangulation by partial ligature or manually.  The only known intervening event that might have influenced this change was the confession of Mr. Giarratano.  Accordingly, the initial autopsy findings in Virginia—which have no cloud over their integrity—are consistent with the independent findings of Dr. Smialek, further confirming the likelihood that Michelle Kline was not strangled manually.”

Wecht Report, July 3, 1990.  P.7.

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Petition P. 54

Location of the crime

“2) Mr. Giarratano confessed that, as he heard Barbara Kline starting to enter the apartment, he “waited by the wall in the living room.”  As she unlocked the door and came into the apartment, he tried to run past her, but “she started screaming and I stabbed her.”

“Although the precise location of the assault on Barbara Kline is not crystal clear from this account, it seems that it took place in the hallway between the living room and the door into the apartment.  The account in no way suggests that the stabbing of Barbara Kline took place in the hallway and ended up in the bathroom, there would have been some blood in the hallway.  However, there was none.  All of the crime scene evidence pointed to the entire assault upon Barbara Kline occurring in the bathroom, for all of the blood was there, except for what was tracked out of there.”

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Petition P. 55/55

Characteristics  of murder weapon

“3)      Mr. Giarratano confessed to using a kitchen knife, approximately seven inches long, to kill Barbara Kline.

However, none of the three stab wounds inflicted upon Barbara Kline was deeper than three inches.  Given the force utilized to inflict these wounds, it is likely that the wounds would have been deeper if inflicted by a knife of the size described by Mr. Giarratano.”

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Disposition of murder weapon

“4)    Mr. Giarratano confessed that he threw the knife with which he killed Barbara Kline into the yard adjacent to the apartment house.

However, no knife was ever found in that location or any other location.”

Victim’s entry  into bedroom

“5)      In his confession, Mr. Giarratano indicated that Michelle went into the bedroom with him voluntarily, and that his assault upon her began after they were in the bedroom.

“In contrast, the officers who investigated the crime scene noted the presence of the “drag marks,” which indicated to them that Michelle Kline had been forcibly dragged into the bedroom.”

Read more about the contradicted physical evidence

Victim’s clothing

6)      Mr. Giarratano confessed that once he began the sexual assault upon Michelle, he pulled her clothes off and raped her.

However, the physical evidence suggests that Michelle had her clothing on at the time that she died.  The forensic scientist who testified for the state noted that there was a smell of urine in Michelle Kline’s underwear and pants.  The usual cause for this is the emptying of the bladder, which occurs at the time of death.

Apartment door unlocked

“7)      Mr. Giarratano confessed that when he left the apartment after the murders, he “locked the bottom door with Michelle’s keys and threw the keys in the dumpster across the street.”

“The crime scene facts, however, contradicted the accuracy of this statement.  When the landlord discovered the bodies on February 5, 1979, he reported that the bottom door of the apartment was unlocked, rather than locked.”

Read more about the Contradicted Physical Evidence 

Petition, p. 56/56

“Moreover, while there was evidence of sexual abuse, the evidence left doubt  about whether the form of abuse constituted rape.  Dr. Presswalla’s report and  testimony do not mention penile penetration, which is necessary to a finding of rape in Virginia.  The report of forensic evidence expert Pat Wojtkiewicz   indicates that what Dr. Presswalla found—the presence of spermatozoa, but the    absence of semen, in or otherwise, had taken place within 72 hours preceding  death.  Doubt about whether there was a rape was particularly significant, for the  finding of a rape made the murder of Michelle Kline a capital felony instead of a   life felony.

“In Isolation, the inconsistencies between these elements of Mr. Giarratano’s confession and the physical and crime scene evidence may seem inconsequential.  However, in context as part of a systematic analysis of the reliability of the confessions, these inconsistencies add considerable weight to the view that Mr. Giarratano’s confessions were based upon what he imagined rather than what he remembered.”

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