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It should have been the perfect hit, the easiest job in the world, even for a no-luck loser like Tony Mackall. In and out. No mess, no problems, nobody gets hurt.
He’d been coming to the gas station regularly for nearly a month, ever since he started working for a local drywall contractor. It sat on a county road overlooking the Occoquan River in Prince William County, Va. He knew the routine: the husband managing the station, the wife in the cashier’s booth out at the gas pumps, a couple of little girls running around the place. Service with a smile and all the old-fashioned hooey of a country store plopped down next to Interstate 95 in outer suburbia. Just the kind of place no longer found in his native southeast D.C. Wide open.
The drywall crew often stopped by the station after doing jobs around the Washington area. One day, Mackall got out of the van and walked over to the cashier’s booth. He was just a little squirt, really, barely 5-foot-7 and a scraggly 140 pounds in his dusty boots. He bought a pack of Salem cigarettes and climbed back into the van. “Those people would be very easy to rip off,” he announced.
The boss was furious. He’d tried to give Mackall a break, hiring him from a work-release program out of a D.C. halfway house. The 23-year-old had been in and out of reformatories since he was 8. Nothing violent, thoughhe just couldn’t keep his hands off other people’s stuff. So the boss had taken a chance on him.
But now here was Mackall showing his true stripes, mouthing off like a preening ex-jailbird who hadn’t learned his lesson. The boss burned his ears good, and that shut him up. Mackall even apologizedbut it didn’t stop him from thinking. Shortly after his slip of the tongue, on the day before Thanksgiving, he picked up his paycheck and disappeared.
Two weeks later, Mackall was back at the Riverview Shell Station in Virginia, this time behind the wheel of a red Audi he’d stolen in Washington. He was working solo now, AWOL from the halfway house on 13th Street NW, where he’d been staying since his release from Lorton. He’d had enough of that dead-end job as a drywall sander. Break his back for five bucks an hour? If he wanted some real money, he was just going to have to take it.
On Dec. 9, 1986, it was wet and unseasonably warm, even balmythe sort of strange weather that can make you itchy, make you want to get outside and do something wild. Dusk was falling, and the whole family was out, as it always was. The manager, 35-year-old Steven Dahn, was perched on a step ladder in front of the station. He was hanging Christmas lights, just as he did every holiday. His 31-year-old wife, Mary Elizabeth, manned the cashier’s booth. The couple’s daughters, April, 6, and Julie, 4, were playing nearby.
Mackall couldn’t have dreamed up a better scenario. He strolled up to the booth and asked for a pack of Salems, just as he had done before. Instead of paying, though, he flashed a revolver and demanded all the money. But Beth Dahn didn’t slide the bills through the slot, as she was supposed to. Why wouldn’t she do as she was told? What was wrong with this woman? No more time for this nonsense. He burst into the back of the booth and waved the gun around, but she was paralyzed with fear.
Enraged, he shot her in the head at point-blank range. One bullet was all it took, and she crumpled to the floor like a rag doll.
On the ladder, Steven Dahn heard a muffled shot from the booth. Though his view was partially blocked by a window advertisement, he could see a pair of hands snatching money from the cash register. By the time Dahn got off the ladder, Mackall was on the run. He took a potshot at Dahn, who hid behind a dumpster, and then he headed for the Audi parked out on the street.
In the booth, Dahn found his wife unconscious, blood trickling from her nose and her head. He called an ambulance, but the damage was done: The .32-caliber bullet had cleanly penetrated her skull behind her ear and burrowed deep into her brain. She later died in a
Somehow the girlsmute witnesses to the mayhemmade it through unscathed. It was as if a freak storm had roared in and a single bolt of lightning had hit the booth and then everything was quiet again. But not the same quiet at all. As her mother lay mortally wounded, April scampered around the rain-and-oil-slicked lot, picking up stray bills left behind by the fleeing gunman.
In the driver’s seat, Mackall tried to make his escape, but the Audi was just as uncooperative as Beth Dahn. At first, the damn thing wouldn’t start at all. Then, when he finally managed to gun the engine, the busted muffler brayed obnoxiously, and the electrical system blinked on and off. Damn. He’d already bungled his first big heist, and now the getaway car wouldn’t move. Somehow, he got the Audi to lurch pathetically down the road, but he could run faster than this, and he finally abandoned the car in a ditch along the northbound ramp to I-95.
Nearly an hour after the shooting, sirens were swirling, and Mackall was less than a mile from the scenenot a good place to be. He was on the perpetrating end of a cold-blooded murder and armed robbery in Virginia, the state that executes killers more efficiently than any other. If he’d committed the same crime on his home turf in D.C., where the death penalty is outlawed, he would have pulled time in Lorton and, after serving a long stretch, probably gotten paroled. But no county or jurisdiction in Virginia is tougher on killers than Prince William County. If you’re looking for mercy, there are only a few worse placesIraq, maybeto commit a capital murder.
Mackall knew he had to get out of Prince William, and he sure as hell wasn’t going to get far on foot. He bolted a few hundred yards through some woods to a town-house complex, where, in the parking lot, Michael Keating was retrieving a windbreaker from his car. A 28-year-old sports editor for the Washington Times, Keating planned to squeeze in a quick jog before picking up his daughter from the babysitter.
Mackall crept up behind him and put the gun to Keating’s head. He told him he needed a ride to D.C., nodding at Keating’s new Mazda RX-7. Keating said his car keys were in the town house, so Mackall led his hostage inside at gunpoint. After nabbing the wallet and keys, Mackall rushed out the front door, and Keating could hear his car’s engine revving outside.
Suddenly, though, Mackall was back in the house, holding the gun, pondering.
“Please don’t shoot me,” begged Keating. “Take my credit cards, my car, anything, but please don’t shoot me.”
“Turn around,” ordered Mackall. “I’m not going to shoot you.”
Keating obediently knelt and pressed his hands against the wall; Mackall jammed the gun against the back of his head. Keating could hear the cylinder turn and click, and then came a tremendous explosion. “Oh God,” he moaned, as the impact threw him to the floor. “Oh God.” He’d been shot in the head, but the bullet had ricocheted off the base of his skull into his spine.
“Get up,” barked Mackall. He was incredulousand somewhat annoyedthat Keating was still alive. Pushing himself up from the floor, Keating instinctively turned toward his attacker. Mackall shot him in the face, and Keating stumbled back. This time, he was sure he was dying, so he recited the Lord’s Prayer to himself, making sure not to cry out. Realizing his only hope of survival was to play possum, he lay still and waited until he heard his car pull away. Despite two bullets to the head at close range, Keating miraculously survived.
Back in Washington that night, Mackall counted his loot: $515 from the gas-station holdup and a measly $30 from Keating’s wallet. Not much, but plenty to party with. He picked up a girl and tried to cool out. In the wee hours, he smoked some PCP and told a drug buddy he was going to blow up the Mazda, which he had abandoned on Stanton Place in southeast D.C. Then, exhausted, he fell asleep.
Two days later, Mackall’s parole officer put the word out on the street: Tony was in big trouble, and he’d better contact him, pronto. Tired of running, Mackall took the bait and gave him a phone call.
“Look, everyone in town is looking for you, Tony, and I think you know why,” the officer told him. “The murder of that lady in Virginia.”
“I know, and I’m scared,” said Mackall.
His fear was well founded. Down in Prince William, Commonwealth’s Attorney Paul Ebert had already announced that he was seeking the death penalty for the slayer of Beth Dahn. The next day, bundled in a down jacket and a coonskin cap, Mackall turned himself in to the police. From that moment on, his days were numbered. Few capital killers escape death when Paul Ebert is on the case.
Like lotteries, executions are one of America’s most time-honored and entrenched government-run rituals, one that owes more to the Old Testament than the Declaration of Independence.
Despite its official tourist slogan, “Virginia Is for Lovers,” the Old Dominion has a long, venerated history with the death penalty. As late as 1748, hog-stealing was punishable by death, and even a notorious liberal like Thomas Jefferson advocated capital punishment for murder and treason. Virginia still holds most of the major records: The commonwealth put to death the first person (for treason, in 1607 in Jamestown), the youngest person (a 16-year-old named Percy Ellis), and the most people (at least 1,355). Not to mention the Martinsville Seven incident, when Virginia electrocuted eight black men during a three-day period in 1951, its own sordid version of the Scottsboro Boys executions in Alabama.
It is a tradition that is proudly upheld to this day. Since the reinstatement of the death penalty in 1976, Virginia ranks second in total executions (47), and it tops No. 1 Texas in the per capita rate at which it carries out the ultimate punishment. Last year, Virginia executed nine people, the most it has put to death in a single year since 1909. Three of the men killed in 1997 were sent to death row by Paul Ebert.
As cold-blooded killers go, Ebert isn’t much to look at. He’s the epitome of the laid-back country lawyerall silver hair and sly, probing drawland not just in his easygoing manner. His rough hands and rugged physique reveal an outdoorsman who’s comfortable with the feel of a shotgun recoil against his shoulder; he’s the sort who doesn’t shy from a pile of wood that needs chopping. There is apparently no bully lurking inside this Virginia gentleman. The only hint of menace in Ebert lies in his pale, cold, blue eyes. When he’s perturbed, he can flash a don’t-mess-with-me glare that conjures up D.H. Lawrence’s quip: “The essential American soul is hard, isolate, stoic, and a killer.”
True, Ebert has never pulled the switch on an electric chair nor helped prepare a lethal injection. He has never even witnessed an execution, but he’s there in spirit for every killing on death row, as are all capital-punishment prosecutors. Without his workand the work of others who believe there is civic value in a mortal eye for an eyeevery death row in the country would be empty. And Ebert’s one of the best.
If you’re going by the bottom line, then Ebert has been Virginia’s most effective capital-punishment prosecutor for the last two decades. The veteran prosecutor has put more people on death row than any other commonwealth’s attorney in the state. Out of the 12 capital cases he’s tried, Ebert has succeeded in getting eight men sentenced to die. The statistic is all the more impressive when you consider that Prince William County is more a bedroom nook than a hotbed of violent crime. Last year, it had only four murders, compared with 16 in Fairfax County and 140 in Richmond.
Likewise, Prince William has less than half of the homicide rate of Danville, the Southside Virginia mill town whose commonwealth’s attorney, William Fuller, has put seven inmates on death row, making him second only to Ebert. A recent Richmond Times-Dispatch series focused on allegations that Fuller’s capital-crime prosecution pattern is racist: All of Danville’s death-row inmates have been black, even though whites commit a quarter of the town’s homicides.
No such accusations hang over Ebert. He is an equal-opportunity hangman. His roster of condemned men is a rainbow coalition: four whites, three blacks, and an Asian. (In fact, the last, an adopted Vietnam-born teen, was Ebert’s first capital case, back in 1982.) When it comes to fulfilling Ebert’s lust for justice and vengeance, it takes all kinds: a white-collar technician, a military man, a teenager, a drug dealer, a drifter or two. They range in age from 17 to 42. What they all have in common is that they’re killers. According to Ebert, they deserve to die, not only for what they’ve done, but for what they might do if they were ever released into society. “These kind of guys don’t have any regard for anyone else’s life,” he says, “and that’s the kind of guy I think ought to be executed.”
Like the computer geek who tortured a 15-year-old dirt-bike rider, using a stun gun on the boy’s penis and then shooting him in the head and leaving him to die naked in the woods. Or the 17-year-old who attacked his neighbor with a fire poker, then stabbed her 40 times and left an ice pick sticking out of her body for her father to find. Ebert remembers every gory detail of their crimeshe forgets and forgives nothing about the men he has placed on death row.
Still, Ebert says there’s more than vengeance at work here, pointing to a direct correlation between his death-penalty record and the county’s relatively low homicide rate. He claims that killers and miscreants of all kinds have learned to avoid Prince William and to do their evil elsewhere, where the crime is heavy and the punishment is light. In the xenophobic tradition of many a longtime Northern Virginian, Ebert regards the Potomac River as a much-needed natural buffer that separates the Old Dominion from the anarchy of D.C. and Maryland. And just in case ne’er-do-wells swim across to perpetrate, they’ll soon bump up against the razor wire of Virginia’s romance with the
“I really believe capital punishment sends a message,” says Ebert. “I know the criminal element knows what happens in different jurisdictions. I’ve heard prisoners say that. The word has beenand I hope it stays that waythat you don’t want to come out of D.C. into Virginia, particularly Prince William County, and commit a crime.”
Ebert barely contains a lawyer’s pride in his death-row prosecution record, even as he dismisses it as just part of his job as commonwealth’s attorney. By now, it has become an issue that is brought up whenever he takes on a capital case: Will Ebert get another one? The county’s mostly working-class citizenrythe two-kids-and-a-dog familiesare overwhelmingly in favor of his try-’em-and-fry-’em approach to grisly murder cases. He has won the heart of the average, law-abiding Prince William resident. His tough-on-crime stance applies not only to murderers but to shoplifters, porn merchants, and all sorts of thugs.
“He has a knack for picking things that get him some support from both sides of the political aisle,” says Bill Kling, a Prince William resident and political pundit. “It appeals to conservatives and kind of grabs him that middle ground, which makes it a little bit safer in his seat. I don’t think he is anywhere near personally liberalhe’s an old boy, you know, part of the old boy network.”
An old-time Virginia Democrat, Ebert recently began his 30th year as commonwealth’s attorney, and in the last several elections he has run unopposed. A consummate politician, he is an avid hunter and fishermana friend of the people who doesn’t need to stoop to conquer. He even knows how to throw a party. His annual Christmas bash, a barbecue of local and exotic game meat held at the local rescue-squad building, has grown into one of the biggest social events around.
But among the plaudits to his effectiveness and decency are whispers that, deep down inside, Ebert keeps score, that he’s an overzealous prosecutor all too aware of his top ranking in the death-row racket. Former Richmond Commonwealth’s Attorney Joe Morrissey says there’s long been talk of a gentleman’s sporting match between Fuller and Ebert. “I hear it from different sources that they’re competing to see who’s sent more people to death row,” says Morrissey, now a well-known defense lawyer who practices all over Virginia. “If that’s so, I find it a little unseemly. When you start talking about notches on your gun as to who has put more in death row, then it goes beyond being your job to going after scalps, and I think that’s inappropriate.”
Morrissey went head to head with Ebert in a capital murder case last year, and he’s still smarting from what he calls a “bitterly contested” five-day trial. His client, 18-year-old Andre Carter (17 at the time of his arrest), was accused of robbing and shooting a man in a bathroom at a Dale City rest stop on I-95. Carter’s two accomplices claimed he was the triggerman, but there wasn’t much else to connect Carter with the murder. For Morrissey, it was the sort of case that clearly didn’t call for the death penalty. During the pretrial meetings, he was appalled at Ebert’s refusal to negotiate on any terms.
“I told him, ‘You don’t have the evidence that supports a capital trial,’ but there was no reaching Ebert,” recalls Morrissey. “He said, ‘We’ve got a death, we’ve got a robbery, we’re going forward with capital murder.’ There was no reasoning….My problem is if that failure to listen was due more to his desire to get another capital conviction, then I find that unpalatable.”
The jury opted for a conviction on first-degree murder, and Carter was given a sentence of 43 years in prison instead of the death penalty.
Come on, Ebert says, suggesting that Morrissey is sore that his client received so much jail time. “He lost the case, and he’s bitching about it,” Ebert scoffs. “He didn’t think Carter was going to be convicted. He cried the whole time, and that’s the way Morrissey operates. He’s trying to make victory out of defeat.” Ebert doesn’t regret trying to put the teenager on death row. “He went into a rest area and killed a poor, innocent man,” he says. “This guy was sitting on the stool with his pants down, he gave him his wallet, gave him what he wanted. But all [Carter] wanted was a body on the gun, and the testimony was pretty clear that the other two were upset that he unnecessarily killed that man.”
Morrissey can be so forthright in his appraisal of Ebert because he’s not a local and doesn’t have to face him on a regular basis. Few Prince William area lawyers deem it wise to publicly criticize this adversary; mostly, they speak of a gracious Virginia gentleman with a sharp, self-deprecating wit and courtly manners. Tough but fair.
“He’s a good, honest man, and he’s grown up with the county,” says Manassas lawyer Randolph Willoughby, who has lost a capital case to Ebert and has known him for years. “You can’t blame the commonwealth’s attorney for the murders that happen in his county. He takes them as he sees them. He prosecutes everybody to the full extent of the law, and he’s fair with his discovery [procedures]. What more can you ask for?”
If Ebert is guilty of anything, local defense attorneys contend, it is a fascination with deadly crimes and equally deadly punishments. They talk about a prosecutor who spends all his time on capital-murder and other high-profile caseswhen he’s not out shooting birds. (Some can’t help mentioning that Ebert has been nailed twice for wildlife infractions; once in 1995 for hunting in Maryland without a federal duck stamp, the other time in 1993 for reeling in too many rockfish in the Potomac.) They say Ebert craves the spotlight, sometimes to the detriment of his duties.
For some locals, Ebert’s death-penalty success is a necessary evil, but nothing to brag about. “When he’s campaigning, he talks about having more people on death row than any other prosecutor in the state,” says Kling, who has tried unsuccessfully to run Republican candidates against Ebert. “To go up there and talk about all these fellows that you’ve put awayquite frankly, I don’t think the death of anybody is something that you want to gloat about and push as something that is a good thing.”
Ebert says he doesn’t need to boast about his record; it speaks loud enough all by itself. Here’s what it says now: eight men convicted of capital murder and sent to Virginia’s death row. Four dead by execution. One suicide by hanging. That leaves three to go.
On a January morning, the Juvenile and Domestic Relations wing of the Prince William County Courthouse in Manassas is packed. Bundled-up babies wail, estranged parents sulk, and bored children of all ages crowd the corridors. Near a water fountain stand a mother and daughter waiting for their turn in court. No one seems to recognize penis-slasher Lorena Bobbitt, who now goes by her maiden name, Gallo. Granted, her hairdo is different and dyed a golden brown, and it’s been a while since her brief moment in the limelight. Now the 27-year-old is back in the courthouse that made her famous; last December, Bobbitt was arrested for punching her mother Elvia in the face as she watched TV in their Prince William town house. Today’s hearing is being held because Elvia wants the authorities to drop the charges; the Gallos have apparently forgiven each other. Just before the sullen couple head into the courtroom, a baggy-trousered teen bashfully asks the former celebrity and manicurist for her autograph. Beaming, she graciously obliges.
Inside the mostly empty chambers, the judge rejects the request to throw out the case, and a translator tells the Gallos the bad news in a Spanish murmur. Citing an obscure point in the Code of Virginia, the judge rules that the commonwealth can pursue the case because Lorena has previously been charged with assault, for kicking her then-husband John Wayne Bobbitt prior to the Penis Incident. In other words, she’s been down this road before.
Meanwhile, upstairs in the nearly empty confines of General District Court, a local man pleads his case, defending himself for the umpteenth time against animal-cruelty charges. He lives in nearby Manassas Park, a blue-collar burg where for years he’s kept a brood of rabbits, more as housemates than as pets. Neighbors periodically complain about the ungodly screams emanating from the premises: They say he starves, beats, and generally mistreats the animals. As always, he has waived his right to legal counsel and tells the court that he loves his rabbits and that he is being persecuted for being Chinese.
Petty Bobbittry and bunny-torture cases are the sort of squabbles and feuds that have long flooded the dockets of Prince William County, a recently rural exurb that serves as a news-of-the-weird frontier between Northern Virginia and the rest of the state. Compared with this never-ending parade of domestic spats and nutball civil disputes, capital murder cases are rare.
Death-penalty trials are Ebert’s speciality, and he leaves the bulk of the regular caseload to his staff of 16 assistant prosecutors. In an interview at his office, Ebert says he almost regrets taking on the case that brought Lorena Bobbitt to this courthouse to begin with. During the highly publicized case, which featured two separate trials, Ebert showed off his courtroom style, a folksy, common-sense approach that shuns legalese and charms juries, but in this instance he failed both times. In the first courtroom proceeding, John Bobbitt was acquitted of marital rape, and, in the internationally notorious trial, Lorena Bobbitt was found not guilty of perpetrating penisectomy by reason of insanity.
For a while at least, Ebert was the butt of jokes, known as the prosecutor who lost the ultimate clear-cut case.
“But for the penis, it wouldn’t have even got a squib in the paper,” he says. “That case should have never been tried, but it was tried, simply because of the publicity aspect of it. There was money in it for certain people. As I told the jury at the time, those two deserved each other.” Even so, he can’t help doing some Monday-morning quarterbacking: “If I had to do it over, I would have tried her case first.”
A butt-ugly brick and glass complex, the Prince William County Courthouse sits on the edge of Old Town Manassas across from a Confederate cemetery and a few blocks down from a gun shop, Virginia Arms, open six days a week. Ebert’s denlike second-floor office is a shrine to his favorite hobbies, hunting and fishing. Strictly a bird hunter, he doesn’t go after the big game anymorehe just didn’t enjoy it. Stuffed fowl hang from the walls, including the first duck he bagged decades ago at Lake Manassas. There are mementos of other critters: carved ducks, wildlife photos, and stacks of hunting magazines that nearly outnumber the law books. On his cluttered wooden desk is a placard of the tongue-in-cheek sort found in country stores: “Wanted: Woman that can cook and clean fish, and tie flies, and owns a boat and motor. Please send a picture of boat & motor.” (Ebert is a widower; his wife died of a heart attack more than a decade ago, and he has never remarried.)
Ebert’s prized hunting dog, Nellielike any hard-core quail hunter, Ebert has always had pointers instead of retrieversenjoys the luxury of a custom-built doghouse that boasts heating and A/Ccushier accommodations than many of the criminals Ebert successfully convicts. It was Ebert’s love of hunting and fishing that brought him to Manassas three decades ago, when Prince William was a rural outback and dairy-farm mecca. In 1965, he took a job as one of the county’s two part-time prosecutors. Considering his early years, it was an unlikely career to pursue. Though raised the son of a dentist in upscale Falls Church, he wasn’t interested in taking after his father. He loved to spend his time outdoors raising hell.
His lifelong friend and frequent hunting companion Warren Davis recalls the first time he met Ebert, when the brash teen rode through his neighborhood showing off a prize pony. “We were poor folkswe had chickens,” recalls Davis, now a semiretired lawyer in North Carolina. “And he had a rich daddy, and I think that really ticked us off. We resented him coming in on that fancy little pony.” Davis and his buddies threw mudballs at Ebert, who promptly jumped off his pony and chased his attackers into full retreat.
Davis says Ebert, despite his rowdy side, even then displayed the qualities that would make him a fierce trial prosecutor. “He always had a quiet determination, even as a kid,” says Davis. “He would understate a decision or a goal, and you wouldn’t place a lot of emphasis on it, and before you knew it, he had either accomplished it or was well on his way to accomplishing it. That made him a very worthy adversary in a lot of areas, because you tended to underestimate what he was up to or what he was about.”
Marriage and the birth of a child forced Ebert to get serious about his future, and he worked his way through night law school at George Washington University. For several years, he worked as an assistant prosecutor for Prince William and at the Manassas branch of a Falls Church law firm. In 1968, he ran for commonwealth’s attorney on a seven-point campaign platform headed by a vow that has become his trademark: “Unyielding War on Crime.” He won in a landslide and became, at 29 years old, Virginia’s youngest county prosecutor.
In the three decades he has held the post, Ebert has had his fair share of quirky, high-profile cases, from the Bobbitt fiasco to the 1996 trial of former FBI agent Eugene Bennett, who was convicted of trying to murder his estranged wife, who was having an affair with crime novelist Patricia Cornwell. (Bennett was threatening to blow up a minister he was holding prisoner in a local church when he was arrested.)
Even those media-fests don’t stick to Ebert’s prosecutorial ribs like the capital murder cases. Talking about these casessome of which date back 15 years, Ebert seems to possess total recall, right down to the tiniest detail of a pretrial motion. And it’s not only the eight he’s won. Like a veteran fisherman, he’s also haunted by the ones that got away.
In 1982, Ebert prosecuted his first capital murder case. John LeVasseur was a 17-year-old born in Vietnam who had been adopted and raised in Woodbridge. He was convicted of brutally killing a 19-year-old neighbor; he had crushed her skull with a fireplace poker and stabbed her more than 40 times, leaving an ice pick and fork embedded in her back. Then he had bound her ankles and doused her with bleach in an unsuccessful attempt to set her on fire. Her father had found her body in the basement family room.
This was the sort of heinous murder that begs for the death penalty, but it was by no means an easy case to win. “The curious thing is, I don’t think we could have given him the death penalty but for one thing, despite all that,” says Ebert. “While he was in prison, he got married, and he wrote a letter to his wife asking her to kill his mother.” This was an obvious sign that LeVasseur posed a threat of “future dangerousness,” one of the conditions that must be met for the jury to impose the death penalty. (Five years after entering death row, LeVasseur hung himself from a shower at Mecklenburg Correctional Facility, one of three Virginia inmates to die while awaiting execution since 1976.)
Another death-row inmate whom Ebert deems a bona fide villain is Michael George, a 32-year-old computer programmer with a Greg Brady fixation who sexually assaulted and killed a local teen on a dirtbike trail near the boy’s Woodbridge home. Ebert describes the way Georgedecked out in camouflage gear like some would-be Rambometiculously planned the crime, even leaving food and supplies along a getaway route through the woods. “He was a cold, calculating predator,” says Ebert, who adds that if George hadn’t stolen the boy’s bike the crime wouldn’t have qualified as a capital-murder case.
Only once has Ebert failed to pursue the death penalty when he had the opportunity. It was a drug case, and he accepted a guilty plea to first-degree murder. “It’s been my experience that juries don’t get too excited about drug dealers killing each other,” says Ebert. “But juries can relate to the little boy riding his bike who is abducted and killed. They get up in arms and rightfully so, and then they’re inclined to impose the death penalty.
Ebert obviously has a knack for the rigors of death-penalty trial work, but he credits Prince William juries for much of his success. Indeed, without a jury’s recommendation for capital punishment, no case can go before a judge for sentencing. “Juries really wrestle about imposing the death penalty,” he says. “It’s an extreme experience for themyou can see it on their faces. I like blue-collar workers on my juries, if I can get ’em on death-penalty cases. They know what happens on the street. But the egghead, the guy that lives in an ivory tower, he thinks about the philosophy of things as opposed to the practicality of it.”
In a 1996 capital case, the jury found the wherewithal to impose the death sentence, but the judge overruled it in a decision that still rankles Ebert. A local man, Melvin Shifflett, was convicted of strangling a woman to death, stealing her pager and money, and dumping her body into the Potomac River, so the fishes and crabs would finish her off, as he later told a fellow prisoner. Virginia law states that in order to qualify for the death penalty the murderer must be armed with a deadly weapon. Ebert argued that Shifflett, who had crushed the woman’s neck bones, had enough strength to render his hands “deadly weapons.” The jury agreed, but the judge ruled that the key word “armed” must be read as implying a weapon other than one’s own body.
Ebert still bristles at the possibility that someday Shifflett could be eligible for parole. Through the years, he had witnessed Shifflett’s grim career path from juvenile delinquent to remorseless predator; he recalls comments Shifflett made about women the jury wasn’t allowed to hear. “During the trial, he told somebody, ‘I like to piss in their mouth and fuck ’em in the ass.’”
The Shifflett case still bothers Ebert, but near-misses are a part of the racket. Ebert may make it look easy, but consistently winning death-penalty convictions is a tough order. “Those death-penalty cases are more difficult than people realize,” says attorney Blair Howard, who defended Lorena Bobbitt back in ’94 and has faced Ebert in court many other times. “When you talk about taking the life of someone, no matter how heinous the crime is, it’s very difficult from a prosecutor’s standpoint. Ebert has the ability to communicate the tremendous loss to the loved ones of the victims. He really touches the heartstrings of the jury.” That’s one way of looking at it.
For all his remorseless stalking of the death penalty, Ebert says he has sympathy for a few of the killers he has sent to death row. These are men who made one big blunder: wrong place, wrong time. Guys like Lonnie Weeks, a 24-year-old North Carolinian who was driving a stolen car when he was stopped by a state trooper on I-95 near the Dale City exit; he panicked and gunned the officer downa murder punishable by death. Ebert prosecuted the case and got his death-penalty conviction, but he admits that Weeks is no monster. He simply made the mistake of killing a cop, and in Virginia, you pay for that mistake with your life.
This is not to say that Ebert is ready to back down; if anything, he believes there aren’t enough crimes on the books that demand the death penalty. Quite often, when Ebert wants to pursue the death penalty for a murder, he finds himself blocked by the law. The stringentsome would argue arbitraryguidelines for capital crimes in Virginia provide a constant frustration for Ebert. State law presently specifies nine offenses that qualify for the death penalty, including murder during a rape, murder of a police officer, murder during an armed robbery, and murder for hire, among others.
In another capital case from ’96, Kenneth Braxton was convicted of killing a woman who was to appear as a witness at his upcoming drug trial. He stabbed her 19 times in the neck, beat her with a pot, and stole her purse; her 3-year-old son was found the following morning sleeping next to his mother’s bloody body. Ebert argued that the stolen purse qualified the crime as murder during an armed robbery, but the jury decided that Braxton had not killed her for her money but to stop her from testifying against him. Braxton got life in prison instead of a trip to death row.
As a result of the disappointing verdict, Ebert recently helped propose legislation that would make it a capital crime to kill a witness. Likewise, after two neighborhood-watch volunteers were shot in a Prince William subdivision last fall, Ebert helped introduce a bill to make such a murder a death-penalty offense. Neither proposal survived this year’s Virginia General Assembly session.
Despite these setbacks, on this early February morning Ebert takes solace in the status of another of his cases. In little more than a week, on Feb. 10, Tony Mackall is scheduled to be executed at Greensville Correctional Center in Jarratt, Va. Of all the killers Ebert has sent to death row, Mackall has spent by far the longest time there. “I think the execution is long overdue,” says Ebert.
Even by the heightened standards of capital-crime cases, the Mackall trial was something altogether extraordinary for Prince William County. There were actually two different trials: one for the murder of Beth Dahn, another for the robbery and attempted murder of Michael Keating. Witnesses included 7-year-old April Dahn and Keating, who testified twice with a bullet lodged near his spinal cord about his horrific ordeal.
The case became a cause célèbre for the local papers. The Potomac News ran editorials railing against the D.C. Department of Corrections for allowing Mackall to remain AWOL for days from the halfway house before issuing an arrest warrant. Mackall himself had become a whipping boy (“Menace From D.C.” ran one headline) for Virginia suburbs’ now-stoked animosity toward the District.
Ebert presented an expert case, using several old standby props. To show the jury the trajectory of the bullet that killed Beth Dahn, he presented the medical examiner with a styrofoam mannequin’s head and an extralong sewing needle. Unpleasant squeaking sounds filled the courtroom as the coroner worked the needle into position. The styrofoam headits footlong needle poking out weirdlyremained in plain view of the jury for a full day of testimony.
April Dahn took the witness stand in all her shattered innocence, and Ebert walked her through some questions: “Do you have a mother?”
“No,” said the girl.
“Do you know where she is?” asked Ebert.
“She is dead,” said April. “Shoot in the head.”
“Do you know who did this?”
“He had a mask. I know he was a black man. He shoot my mommy in the head.”
Keating described in riveting detail what it was like to be shot in the head twice at close range and to mistakenly believe he was dead. His ability to identify Mackall as his assailant proved especially damaging to Mackall. The jury voted for a guilty verdict, and moved on to unanimously opt for the death penalty, citing Mackall’s “future dangerousness.” The judge upheld the jury’s recommendation, and Mackall’s execution date was set for June 1988.
During the trials, the defense really didn’t have much to offer, except a portrait of a severely disturbed young man who had a deep-rooted hatred of his mother and women in general. Hospital records showed that he had suffered some serious injuries as a toddler: At 2, he had gotten his arm stuck in a washing machine (doctors considered amputation), and at 6 he had been hit in the head with a brick.
Even after winning the death-penalty verdict, Ebert hammered away at the cold, calculated nature of the crime at Mackall’s second sentencing, arguing for life in prison on top of the capital punishment. “Not only did he murder someone, he cleaned the cash box out. It was an unjustified and atrocious act. There is no evidence of remorse….One thing is for certain: If he is behind bars, he will not be on the street to take the life of another hardworking Mrs. Dahn. He will not be on the street to frighten little children, to make little children grow up without a parent.”
All that Mackall’s defense lawyers could do was point to the fact that the spree was their client’s only act of violence, despite an upbringing that bordered on the inhumane. “I can’t help but be struck by the circumstances under which this man has been brought up,” said attorney Frederic Edwards. “He comes from a terrible background with regard to family life and his living conditions. He comes geographically from an area which is virtually a war zone. [But] Mr. Mackall has for the most part a nonviolent background.”
During the lengthy appeals process that followed, Mackall’s case was taken up by Alexandria attorney Joseph Bowman, a veteran defense lawyer who has represented several death-row inmates. From ’93 on, Bowman has been trying to show that Mackall did not receive adequate representation during his trials. His main focus has been on what he considers the most important point not brought out by Mackall’s team of trial lawyers: With an IQ of just 64 and a childhood of abuse and repeated head injuries, Mackall could be adjudged to be semiretardeda mental condition that could have had an effect on the jury’s decision to impose the death penalty.
In the days leading up to the execution, the few newspaper stories on the Mackall case seized on his appeal, reporting that Virginia was poised to kill a death-row inmate who was retarded.
Ebert dismisses any notion that Mackall’s low IQ was a reason for clemency. “Bullshit,” he says. “I think his actions speak for themselves. He certainly had enough intelligence to plan and do what he didto kill and rob not once but twice.” Ebert is also fed up with the appeals procedure, which creates a veritable mini-industry for anti-death penalty advocates. Working on appeals paperwork now takes up most of his workdays. To him, it’s all just a big stalling tactic. “These people delay everything in the process,” he grouses. “And it’s just another effort, in my opinion, to delay the appeals process.”
Ebert says he takes little interest in the actual executions, the method, or the details of an inmate’s last moments. “Death is death to me,” he says. “I’m concerned about it in that I want the jury’s sentence to be carried out. I don’t care how it’s done as long as they carry out the sentence….If they wanted me to come down there and pull a switch, if that was necessary, I would do it. But I don’t really follow it.”
The road to death row traverses some of the most godforsaken real estate in the state. They call it Southside Virginia, a giveaway that the landscape itself is characterless and poor as a snake. It is the place where the rolling piedmont has gone to die, a bleak, flat monotonous terrain that can depress even the most methed-up trucker. It’s the asshole of the Old Dominion.
Just before you hit Carolina on I-95 south, you turn right on Highway 58, a gutted, always-under-construction state route used almost exclusively by 18-wheelers. Then you go for miles past furniture factories, lumberyards, textile mills, and scrub pine, a jumble of icons that put you on notice that you have officially reached the middle of nowhere. Just outside a small town called Boydton, you take a left on Prison Road and head through the front gates of the Mecklenburg Correctional Facility.
Mecklenburg is a modern prison that profiles as an upscale public high school crowned by shiny steel razor wire; the facility sits on a few hundred acres cut out of the scrub pine. Here is where Mackall has spent the last 11 years. But you don’t actually die on death row. Three days ago, he rode cuffed and shackled in the back of a prison van to Greensville Correctional Center, 60 miles east. That’s where he is scheduled to die this evening at 9 p.m. sharp.
One of Mackall’s few friends on death row is another inmate whose case was prosecuted by Ebert. In 1993, Carl Chichester was convicted of robbing a Manassas Little Caesar’s and gunning down a 17-year-old employee. He too is appealing his case, making the usual charges: that he received inadequate counsel during his trial and that there was prosecutorial misconduct.
The prison’s visiting room is a spare but stuffy room with seven booths and two domains separated by glass and connected by telephone. A guard leads Chichester into one of the booths and unshackles him; he is dressed in the prison’s bright orange jumpsuit.
Forcing a weak smile in greeting, Chichester says he’s in a blue mood today; he just lost another comrade to an execution two months ago, and now Mackall is set to go down. The men of death row are the only family he’s got left, and they’re being shipped off to Greensville at an ever-increasing rate. In 1997, Virginia executed nine men, the highest one-year total in nearly a century. And the pace doesn’t show any signs of letting up. “It gets a man to be heavy-hearted,” he says.
During a 45-minute interview, Chichester, a gregarious 35-year-old, talks about how he copes as a condemned man. He’s an avid reader; he rattles off a list of classic authors he enjoys: Salinger, Charlotte Brontë, and Emily Brontë. Lately, though, he admits he’s been reading a trashy novel by Irwin Shaw. He talks about the tightknit group of men on death row, but mostly he talks about Mackall.
“He reached out to me when I first got here,” he says. “He was like a brother to me. He showed me the ropes on death row, told me which people I could trust and which people not to trust.”
Mackall would often regale Chichester with stories of the “days of yore” on death row, before many privileges were revoked during the administration of Gov. George Allen. Mackall was the type of inmate who had only a few close friends; the rest he didn’t fool with. The fact that both men were from the D.C. area only strengthened their relationship.
Contradicting the people who want Mackall saved, Chichester emphasizes, “Tony was not illiterate or semiretarded, as they’ve said.” Furthermore, “The villainous person the prosecution and the state made him out to bethat wasn’t Tony at all,” he says. “They’re killing a totally different man. He never showed me that other person. He only showed me compassion and respect.”
On death row, Chichester says you desperately need some support from fellow inmates; otherwise you may have nobody at all. “I’ve watched whole families just give up on people here,” he says. “It’s the obscurity, the isolation. We’re in here, but people go on with their lives. You don’t want to be a burden to them. All you want is someone to acknowledge that you’re still living, that you’re not dead yet.”
The deaths of his close friends leave Chichester wounded, but he shares the public’s lack of interest in the general issue. “They’re killing people now at such a rate that you get desensitized to the whole thing,” he says. “Killing a person with a death sentence is as normal as you going to get a cup of coffee before you go to work in the morning.”
Chichester doesn’t know when his execution date will be set; he still has a lot of appeals to pursue. The last thing Mackall told him was, no matter what, to stay strong. He refuses to let himself get discouraged. “I see the change in people here,” he says. “It’s like the lights go out. But that never happened to Mack. He’s a fighter and he’ll go down fighting.”
The sun has barely gone down on Feb. 10, 1998, outside the Greensville Correctional Center in Jarratt, about 80 miles south of Richmond. But it’s already too late for Tony Mackall. At 6 p.m., Virginia Gov. James Gilmore rejected his request for clemency.
At 9 p.m., Mackall will be given a lethal injection in the Death House, the name for the execution chamber in the L unit of the prison complex. Death-row inmates in Virginia now have the choice to die by electric chair or chemical injection. So far, no one has opted for the chair.
Little more than a decade ago, Mackall’s execution would have been held at the state penitentiary near downtown Richmond. But executions there attracted raucous crowds from both sides of the capital-punishment debate. In those days, not that long ago, death-penalty fans would set up lawn chairs and beer coolers like fans at a sporting event, holding signs that screamed, “Fry the Nigger.” Inevitably, the mass bloodlust would end in drunken brawling and all sorts of deviltry.
In the late ’80s, corrections officials moved death row to Mecklenburg and the Death House to Greensville. The intent was to keep a lid on the foolishness by moving the controversial proceedings as far from the general population as possible. It’s worked. Especially in recent years, executions here rarely draw demonstrations of any kind, although tiny groups of anti-capital punishment advocates often make pilgrimages to this grim outpost.
It’s small wonder that nobody shows up anymore. Like Mecklenburg, the Greensville Correctional Center sits on a desolate, edge-of-the-world stretch of Southside Virginia pine scrub near the old U.S. 1 highway, now a cracked back road where only local traffic dares to tread. The only sounds you hear tonight as darkness falls are the occasional moan of a freight train going by, punctuated by the baying of dogs through the pine. It’s a hell of a place to live, and a worse place to die.
Despite an eloquent petition of clemency penned by Bowman, there hasn’t been much support for Mackall. The pope hasn’t phoned his disapproval, and Pat Robertson, apologist for the born-again Texan martyr, Karla Faye Tucker, hasn’t bothered to show up to protest, even though he’s only an hour’s drive away in Virginia Beach. Without any human-rights bigwigs screaming foul, there consequently hasn’t been much media interest in Mackall’s predicament. The only reason most newspapers have sent correspondents is to get a datelined report of Virginia’s first execution of 1998and to inform a jaded public that Mackall is the 47th man to die in the Old Dominion since the death penalty was reinstated.
In his last hours, Mackall is truly alone. He receives no family or other visitors. He has signed papers asking that his family not be allowed to see his death, even if they want to. Bowman says that when Mackall was a boy locked up in reform school, his family seldom visited him, so he may be acknowledging that long-ago absence nowas well as sparing them any more pain. Mackall has had no jailhouse conversion, and no ministers have come to comfort him as he faces his punishment. His only companionship comes from a cadre of lawyers, finally replaced at 8 p.m. by Bowman, who spends the remaining minutes with his client.
For his final meal, Mackall has pizza, french fries, and a Pepsi, courtesy of the prison cafeteria. Then he smokes a cigarette as he waits in his cell adjoining the death chamber. He and Bowman talk together until 8:55 p.m., when suddenly Mackall exclaims, “Oh my God! I almost forgot.”
Dressed in his prison blues, Mackall goes to his cot, drops to his knees, folds his hands, and bows his head in prayer. In a quiet murmur, he asks for God’s forgiveness and asks God to look over his family. “That’s the closest I came to getting upset about the whole thing,” recalls Bowman. “When he knelt down, it was just like a little kid would do.”
Before going into the death chamber, Mackall turns to his lawyer for help. He’s frightened. “It was just me and him,” recalls Bowman. “He said, ‘Mr. Bowman, I’ve never cried about anything else in my life before.’ I said, ‘Well, you don’t have to now, Tony. Remember, the last thing any of us have is our dignity. Just do this the most dignified way that you can.’”
Mackall nods, and then walks into the room where he is to die. He does not struggle as he’s laid down on a stainless steel gurney and tied down with leather straps. Prison employees pull a curtain around the gurney momentarily, and when it opens again, Mackall is lying with his arms outstretched on armrests in the shape of a cross. From a black curtain behind him, intravenous tubes snake down into his veins, dripping three kinds of poison.
A guard holds a telephone above Mackall’s mouth so he can say his last words to Bowman and the othersincluding some relatives of the victimin the adjoining witness room: “I would like to say to the family of Mary Dahn that I am sorry for what I have caused. I ask you to forgive me. I know it is a hard thing to do, but I only ask. To Mr. Keating, again I am sorry and I also ask for your forgiveness. And to the kids of Mary Dahn, I know it was a hard thing to grow up without a mother.”
As the guard takes the phone away, Mackall raises his head to look into the witness room at his lawyer and last friend. “I gave him a thumbs up,” says Bowman, who’d never attended an execution. “I don’t know if that was appropriate or not, but I wanted him to know. I was amazed how brave Tony was. He nodded and then put his head down and died three, maybe four minutes later. It
was very stark.”
Outside, in the cold Virginia night, a corrections spokesperson named Tammy Brown gives a brief statement to a small group of reporters: Mackall was officially pronounced dead at 9:10 p.m. The reporters scramble to their vans and cars and cell phones to call in the news. Near the entrance to the prison, a dozen death-penalty protesters gather in a dark field, bundled. They stand in a circle, holding candles and reciting poetry and reading the names of men executed by the commonwealth down through the years. Guards drive by, arriving for another night on the late shift.
Ebert is nowhere in sight. He’s out of state, in fact, on a hunting excursion with his old friend Warren Davis down in Beaufort, N.C. After an afternoon tramping around Davis’ quail and pheasant preserve near the coast, Ebert gets word that Mackall has been executed. Heading back from the field, he receives the call on the car phone and tells his buddy Davis the news. The hunter has gotten his prey.CP