A Murder is Solved and a Man Avoids Death, Thanks to Unusual Deal Brokered by Clinic Professors

June 13, 2012 — A 30-year-old man who was previously sentenced to die for the 2002 killing of two Prince William County residents will now avoid the death penalty under an unusual deal brokered by his lawyers, University of Virginia law professor Matthew Engle and Washington & Lee University law professor David Bruck.

As part of the deal – approved May 31 in Prince William County Circuit Court – Joshua Andrews pleaded guilty to the murders of Romanno Avellino Head and Robert Irvin Morrison during a January 2002 robbery, as well as the December 2001 killing of Clayton Kendall Breeding in the parking lot of Rippon Middle School in Woodbridge.

A jury acquitted Andrews of Breeding's murder in 2007, but he agreed today to switch his plea to guilty for all three homicides in exchange for a guarantee that he would be sentenced to life in prison without the possibility of parole instead of receiving the death penalty.

Engle said Andrews was ready to "accept responsibility" and waive his right against double jeopardy.

"From the commonwealth's perspective, they can do something fairly remarkable, which is to undo a jury acquittal in a capital murder case and obtain a conviction in a case that would otherwise remain unsolved," Engle said. "And the deal is, they take the death penalty off the table. That's what makes it possible for Josh to admit his guilt."

Engle originally became involved with the case after Andrews was convicted of multiple counts of capital murder related to the killing of Head and Morrison, and was subsequently sentenced to death. Engle, who was working at the Capital Defender Office in Northern Virginia, was assigned Andrews' appeal to the Supreme Court of Virginia.

While preparing to argue Andrews' case, Engle was hired to help run the Law School's Innocence Project Clinic. Andrews' appeal was the only case that he brought with him when he joined the faculty of the U.Va. School of Law in May 2010.

That summer, the Innocence Project Clinic hired law students Brett Blobaum and Carolyn Nguyen to work as research assistants, but also to help prepare Andrews' appeal to the Virginia Supreme Court.

One of Nguyen's tasks was to research what types of victim impact testimony is admissible during a trial's sentencing phase, and what sort of mitigation evidence should be allowed.

"The court, in Andrews' case, disallowed or omitted a lot of what we thought was very relevant mitigation evidence," said Nguyen, who graduated in May.

For example, Nguyen said, the circuit court did not allow the jury to hear about a poem that Andrews had written that described a traumatic event from his childhood in which he was locked in a shed that was then set on fire, leaving him with extensive burns. Also, the court did not allow testimony about other trauma Andrews suffered as a boy, such as how he was affected when his father was murdered while on death row in Texas, she said.

"There was a lot of very powerful evidence in Josh's case about how a history of violence had made him who he was," she said. "Most courts try to include as much mitigation evidence as possible so that juries can get an idea of who the defendant really is. However, during sentencing the court didn't admit a lot of relevant evidence about Josh's past."

Engle argued before the court that the mitigation evidence should have been allowed in Andrews' sentencing hearing as the jury decided whether he should receive the death penalty or life in prison without the possibility of parole.

"Josh had – and I've been doing capital defense work for about a decade now – probably the most horrific upbringing of any that I've seen," Engle said. "He suffered some of the worst trauma and abuse and poverty and neglect of any of the clients that I've ever represented."

Ultimately, the Supreme Court of Virginia agreed with the appeal and threw out Andrews' death sentences, but also affirmed his capital murder convictions. His case was sent back to Prince William County Circuit Court for a new sentencing trial.

Engle stayed on as Andrews' lawyer, and Bruck, director of the Virginia Capital Case Clearinghouse at Washington & Lee's School of Law, was also appointed for the re-sentencing trial. A dozen Washington & Lee law students in Bruck's clinic began helping with the case, and Blobaum also continued working on it, taking on an independent research project on the constitutionality of Virginia's death penalty statutes, and helping to review the thousands of pages of mitigation records that the defense team obtained.

Andrews' new sentencing hearing was scheduled for June.

As the hearing date approached, Engle and Bruck hired a specialist in "defense-initiated victim outreach," a relatively new concept in capital defense that involves reaching out to victims' families, opening a line of dialogue, answering their questions and possibly providing them with things the prosecution might not be able to, such as access to the defendant.

The defense team's specialist, Tammy Krause, developed a relationship with Breeding's mother. Over the course of several conversations, it became clear that Breeding's mother wanted specific information about her son's death that could only come from Andrews. Regarding Andrews' re-sentencing trial, she said that if Andrews was willing to accept responsibility for her son's murder and that process allowed him to answer her questions, than she was willing to assist the commonwealth with the plea agreement.

"The acquittal of Josh for the murder of her son was an extremely painful event in her life," Engle said. "She felt that there had never been any acknowledgment of her son's murder and this plea provides for both the legal system and Andrews to recognize his culpability for Breeding's death."

Engle and Bruck took that message to the prosecutors, which resulted in the deal approved May 31.

"It certainly is a bittersweet thing for Josh," Engle said. "He avoids the death penalty, but he knows that this means he will spend the rest of his life in prison. He will die in prison. That's a harsh reality, but he's prepared to do that."

Blobaum said his work on Andrews' case had a profound effect on his legal education, and helped him decide to pursue a career in capital defense.

"Coming into it, I was under the assumption that the system generally worked well," Blobaum said. "You hear about a few cases here and there where something went wrong, but the problems don't really appear systemic. Once I started getting involved with the Innocence Project, I found that there are fundamental issues with the system that make it incapable of protecting what it's supposed to protect. … Especially in Virginia, the procedures just aren't in place to protect the defendants."

The deal that allows Andrews to avoid the death penalty is an example of the justice system working properly, Blobaum added.

"When you get down into Josh's background and his life, I don't think that it would be in any way reasonable to put him to death," he said. "The guy went through some really, really traumatic stuff when he was a child and just never learned how to cope in the actual world. Hopefully the jury would have seen that too, but this way we don't have to worry about it."

Nguyen said it was difficult at first to get over the fact that Andrews had committed such heinous crimes. As the case went on, however, she began to see where the court had made missteps and "it became easier for me to fight for him."

"Regardless of someone's level of guilt, you believe in the fairness of the process and in a defendant's right to a fair trial," she said. "A lot of these rights were denied in Josh's case. Regardless of what he's done, you want justice to prevail."