The Exoneration of Bennett Barbour
By Dahlia Lithwick
Posted Monday, March 12, 2012
the innocence of dozens of men convicted of crimes
they didn't commit. Men just like Barbour. So why
won't the state say who they are?
Bennett Barbour was convicted in 1978 of a rape he
didn't commit. At trial, he had an alibi supported by
several witnesses. He didn't match the victim's
description of her attacker. Barbour suffers from a
severe bone disease that would have made it nearly
impossible for him to be the assailant. Police found no
physical evidence connecting him to the crime, beyond
the eyewitness identification by his alleged victim.
Barbour was handed an 18-year sentence and paroled after
nearly five years.
He tells me his time in prison was "a nightmare." He has
cancer now, "all over my body," and travels regularly to
is taken away. Your pride ..." as his voice trails off.
Jonathan Sheldon, a lawyer familiar with his case says,
"People think, `Oh, he only got five years.' But in that
five years he lost his six-month-old marriage, and
scarred his relationship with his daughter. That five
years broke him."
The
Barbour was innocent nearly two years ago, when DNA
testing cleared him of the crime.
however, never informed Barbour of his innocence. (State
officials claim to have mailed a letter with the test
results to Barbour's last four known addresses, but none
of those letters ever reached him.) Barbour learned of
the DNA tests that proved his innocence only last month,
on Feb. 5, when he received a phone call from Sheldon.
"I was with my nephew playing cards, and Mr. Sheldon
called my mother's house looking for me," says Barbour.
"He said the authorities stopped looking for me because
they couldn't find me. But Sheldon found me in two days
using the Internet."
Actually, that's not true. It only took Sheldon a few
hours.
Bennett Barbour is one of the fortunate ones. He, unlike
what may ultimately amount to dozens of other men
wrongly convicted and incarcerated by the state of
proved. His lawyers at the
Innocence Project filed paperwork last week to have the
state formally declare him innocent. The trouble is that
Barbour is one of only a handful who have enjoyed this
vindication. Years ago,
they were likely convicting innocent men. The state's
officials know their criminal justice system is riddled
with errors. As they investigated the depth of the
problem, they have found that indeed many more men-at
least dozens, maybe more-might be exonerated using DNA
tests. But the state's authorities did not move quickly
to suspend these sentences or contact the individuals or
families involved. They did not publicize their
findings. Indeed, they denied Freedom of Information Act
requests that would have shed light on the problem.
Rather,
a system of notifying current and former convicts that
is almost guaranteed to lead to the fewest number of
exonerations.
How was it that Bennett Barbour's DNA came to be tested
several decades after the alleged rape? In September
2004, Mark Warner, then
random audit of 31 old criminal cases after a vast trove
of biological evidence was discovered lying around in
old case files saved by state forensic serologists. The
testing of those 31 samples led to the exonerations of
two convicted rapists. Warner, embarrassed by the
revelations, then ordered in late 2005 that every sample
obtained between 1973 and 1988 be rechecked. It amounted
to thousands of files.
It was a project intended to take 18 months at a cost of
$1.4 million dollars. Now in its seventh year, the cost
of the project hovers at $5 million. Nobody has any idea
exactly how the Virginia Department of Forensics has
conducted its work. Indeed, no one knows much about the
specifics of the crime lab's work at all. According to
the Richmond Times Dispatch, the state located
approximately 800 biological samples of DNA that could
be tested. Of those, only 214 were in sufficient
condition to yield accurate results. Among these, more
than 70 people-one commonly cited figure is 79-appear to
have been excluded as the perpetrators of a crime.
Garrett (who has contributed to Slate) is an expert on
wrongful convictions and DNA exoneration. His landmark
study, Convicting the Innocent, scrutinized the cases of
the first 250 people to be exonerated nation-wide by DNA
testing. To hear him tell it,
is a mystery wrapped in obfuscation. "This DNA testing
program began two Governors ago," he says, "but its
operation has remained shrouded in secrecy. We do not
know how the authorities chose to test the cases that
they have tested. We do not know how long the
authorities have known about the many dozens of cases
where DNA has excluded the individuals. We do not know
what local prosecutors plan to do about the cases where
DNA may prove innocence."
At the time
founder of the Innocence Project, which has used DNA
testing to exonerate hundreds of prisoners across the
country, noted in astonishment that "a random sample of
convicted felons and we're getting a 7 percent
exoneration rate" in
percent exoneration rate may be grossly understating the
problem. UVA's Garrett suspects that the error rate may
actually be as high as 17 percent. As he discovered in
his own research, Barbour's conviction, based on the
testimony of a single eyewitness, reflects the reality
that of the first 250 people exonerated by DNA testing,
a whopping 76 percent were misidentified by
eyewitnesses.
Whatever the percentage of error on the part of
certain: Only a handful of the falsely convicted have
received the exonerations they deserve. Since DNA
retesting began in
formally exonerated and another, who is dead, was
cleared of a rape he didn't commit. When Barbour's
paperwork is processed, he will be only the fourth
person to be exonerated, despite the fact that the state
is aware of scores of others who may be innocent. Even
now Barbour remains skeptical. "They can do anything now
to trick it up like they did 34 years ago," he says.
"I'm not going to be excited 'til it all comes out. I'm
innocent. I'm here. But I don't trust the justice
system. Period."
After all,
contact Barbour to acknowledge his innocence. It was
Jonathan Sheldon, a private-practice attorney in
and many of the other 70-some men who have been
convicted of crimes, excluded by DNA testing, and never
advised of that fact. As of today, the state has given
him only 32 names and Sheldon says he has already
located most of them. Some are dead. Some are dying.
Some suffer from mental illnesses that make it
impossible for them to even understand why he is
calling. As the Richmond-Times Dispatch's Frank Green,
who first reported on Barbour's exclusion by DNA
testing, wrote last month: "The
Forensic Science has issued reports that exclude at
least 76 felons as the source of biological evidence in
their cases." Yet as of last month, 29 of those felons
had not been notified that the new DNA reports existed.
Sheldon launched this crusade to notify as many innocent
men as possible because, in his view, neither
crime lab nor its prosecutors' office is taking that
task seriously. How the
to put the crime lab and prosecutors' office in charge
of retesting DNA and notifying the prosecutors of the
state's own errors is one of the mysteries here. It
would appear to be a program destined to end in
confusion, obstruction, or worse. And it has.
I spoke to Pete Marone, director of the
Department of Forensic Science. Marone argues that the
state's crime lab should not be making legal
determinations about the meaning of these DNA tests. "At
what point does the lab's responsibility end?" he asks.
"We're a lab. We do analysis. We don't determine what
the meaning is." He says that the crime lab's policy is
to turn over their results to the police department and
prosecutors, who are in a better position "to ascribe
value to those numbers."
Initially,
notify the convicts that their DNA was being tested.
Then, in 2008, the state legislature ordered them to
notify those same convicts that their samples had been
found and might be examined. If a convict failed to
return the paperwork, the sample was tested nonetheless.
Despite Marone's claim that the Department of Forensic
Science only conducts lab work, it alone is responsible
for informing state prosecutors and police that former
convicts have been cleared by DNA tests.
The department put out a call to pro bono lawyers around
the state, who were asked to hand-deliver notifications
that the accused might now be subject to DNA retesting.
But there was a condition: Those lawyers were required
to sign confidentiality agreements indicating that they
were barred from explaining the content of the letters
to the accused or from representing them in court.
Marone explains the rationale for constraining these
volunteer lawyers: "The General Assembly said to send
pro bono attorneys," he says. "They can't go blabbing
all over the place. They can't have the person they are
notifying be their client." He adds that this was done,
in part, to protect the pro bono lawyers: "If you send a
young, new attorney to a bad neighborhood, bad things
could happen."
The letters themselves were mainly legal jargon, and
most of the recipients had no idea why the state was
contacting them. Here is a copy of one of the state's
notification letters:
According to Deirdre Enright of the Innocence Project at
the University of Virginia Law School (and one of
Barbour's lawyers), most of the recipients were simply
terrified that the commonwealth was re-examining their
alleged crimes at all. The volunteer lawyers who
delivered these letters were reduced, more or less, to
being carrier pigeons, unable to explain the crucial
significance of these letters' content for the lives of
these men and their families. The net effect was simply
to frighten most of the convicts who received them, who
knew only that the justice system was spontaneously
taking another look at them decades later.
Marone sees it differently. "This is the criminal
justice system," he says. "The answer is not to release
all the criminal records to the newspapers. Lots of
these folks hear about the testing and say `I did my
time. I'll tell you what to do with your report.' We
couldn't go searching the streets for people."
The lawyers at the UVA Innocence Project believe that's
wrongheaded. Those who have been convicted of a crime
they did not commit want to know that they could now be
proven innocent. They also quickly realized that the
worst possible agency to be notifying individuals-the
prosecutors and state crime lab-had taken the sole
authority to help them. Matthew Engle, legal director of
the Innocence Project Clinic, tells me that those
agencies are "not in the business of exonerating people,
they're in the business of convicting people."
Enter Jonathan Sheldon. A successful
attorney, Sheldon has long been involved in death row
cases and has worked for years to try to end the death
penalty in the commonwealth. Indeed, he was one of the
lawyers for John Allen Muhammad, the D.C. sniper. As he
learned of the pro bono lawyers fanning out across the
state, Sheldon grew infuriated that
unwilling to release the names of the more than 70
people who DNA testing suggested were innocent. "Why ask
for volunteer lawyers to find people and tell them about
DNA testing that might be meaningless?" he asks. "Why
was the state trying to eliminate all these lawyers from
representing all these people?"
Sheldon submitted a Freedom of Information Act (FOIA)
request and investigated further. He looked at the
sample letter being mailed out. "These are not well-
educated people," he says, of most of the accused. "I
thought, `If you send that letter to someone they are
going to think the government is after them again.' "
Sheldon also realized that despite all the testing going
on, it appeared that not a single prosecutor had
notified anyone that they had been found innocent. "At
some point," he says, "we were poking and prodding them
and filing FOIA requests and they just broke and offered
to winnow out the 70-something names that had been
excluded." As with the pro bono lawyers before him,
state authorities made Sheldon promise not to help those
who could be exonerated sue the Department of Forensic
Science or take any action on their behalf. Instead,
beginning in January, he began making what he calls
"oblique" phone calls to men who couldn't always
understand what he was trying to tell them about the
state, their DNA, and the justice system.
And so, while the commonwealth was unable to track down
Bennett Barbour for two years, Sheldon did it in a few
hours. (Barbour's lawyer Deirdre Enright says she was
able to find Barbour's correct address in an hour using
WhitePages.com.) Nate Green, the
Commonwealth's Attorney, told the Richmond Times
Dispatch that when he received the 2010 report in
Barbour's case, he sent letters out to the four
addresses Barbour had occupied over the last 15 years
and received no response. Sheldon says Green "is a good
guy and meant well," but you can't hand a lab report to
the police and tell them to go find a guy. "It's just
not his job to go find old cases and it's not the
police's job," he says. Sheldon made it his job.
In yet another case that recently emerged, the family of
a deceased man seeking information on his DNA test
results learned that their letter had been misplaced as
well. When Sheldon asked the
those records, he was told that the department had "not,
as part of the project's process, intentionally sent
notification letters or certificates of analysis to
family members of deceased suspects." In other words,
DNA tests that could potentially exclude deceased
offenders may not be released at all. Marone claims the
forensics department called the prosecutors immediately
in this instance, but the "paperwork was put aside." He
cautions that critics of the system should "keep in mind
that until last year, we weren't allowed to give those
reports to anyone but a law enforcement agency. That
information is private and personal, and maybe that
individual doesn't want his family members to have a
copy of the report. We have to protect the sensitivity
and privacy of those individuals."
Marone acknowledges that the system is "not perfect and
it's not timely." But he rejects the idea that anyone is
to blame. Marone claims the crime lab is doing its job,
albeit slowly, and that it is the responsibility of the
prosecutors and police to notify those who have been
excluded by the testing. Sheldon, for his part, rejects
the idea that the forensics lab is merely a passive,
impartial observer. "[The Department of Forensic
Science] thinks of themselves as this holy, unbiased,
scientific branch of government," he says. "But they are
an organization with political sensibilities that are
strongly pro-prosecution. That's not surprising since
prosecutors and the police are its main constituents."
It's hard to tell whether all this represents mere
incompetence on the part of the commonwealth, or some
more pernicious effort to cover up past error,
intimidate potential exonerees, and disqualify dozens of
pro bono attorneys who likely could have represented
them. The fact that vitally important information seems
to fall into a black hole between the forensics lab, the
prosecutors' offices, and the convicts and their
lawyers, suggests that intentional or not, the net
effect is that injustices are not being brought to
light.
It remains to be seen whether there will be any
repercussions for the state for its failure to notify
what may be dozens of men that they were imprisoned for
crimes they didn't commit. The editorial board of the
Richmond Times Dispatch recently advocated "making
prosecutors and police chiefs personally liable for the
failure to inform innocent men in a timely manner of
evidence exonerating them." Sheldon says that it may
certainly be the case that someone will have a claim
against the state as these convicts learn of
errors and delays, particularly if someone is still in
prison and has not been notified. At the very least,
there is a strong push from Innocence Project branches
and defense lawyers around the state to allow someone
other than Department of Forensic Science and the
prosecutors' offices to take responsibility for
notifications.
Sheldon did learn recently that the forensics department
may be taking action of a different sort. According to
someone at the Mid-Atlantic Innocence Project, the crime
lab initiated an inquiry into whether Sheldon breached
his confidentiality agreement because of the press
coverage of Barbour's story. Marone denies that this is
so.
Either way, for so many crimes committed so long ago,
time is of the essence. Sheldon explains that by
refusing to notify the families of those who are
innocent but now dead, Virginia has created a policy
that will obscure even more wrongdoing. "I am finding
people who are dying all the time," he says, as he works
his way through the list of the few remaining convicts.
"Dying, sick, and homeless." The forensic department's
policy of withholding the truth about dead convicts
deprives the families of these men of the truth of their
exoneration. And given the fact that Barbour has bone
cancer, Barbour himself might never have ever learned
the truth of his own exoneration. Last Friday, he was
rushed to the hospital again. Barbour knows that he does
not have much more time. But he also knows that if he
had passed away a month ago the state of
have kept his daughter from ever knowing the truth about
her father.
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