Saturday, March 17, 2012

The Exoneration of Bennett Barbour

The Exoneration of Bennett Barbour

 

By Dahlia Lithwick

Posted Monday, March 12, 2012

http://www.slate.com/articles/news_and_politics/jurisprudence/2012/03/bennett_barbour_exonerated_of_rape_in_virginia_how_the_state_is_botching_the_dna_retesting_and_notification_of_old_cases.html

 

     Virginia knows it has DNA evidence that may prove

     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

Richmond for treatment. In prison, he says, "everything

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 Commonwealth of Virginia learned that Bennett

Barbour was innocent nearly two years ago, when DNA

testing cleared him of the crime. Virginia authorities,

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

Virginia, knows that his innocence can be conclusively

proved. His lawyers at the University of Virginia's

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, Virginia authorities realized

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, Virginia state officials appears to have devised

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 Virginia's governor, ordered a

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.

 

University of Virginia law school professor Brandon

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, Virginia's statewide audit

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 Virginia's audit began, Barry Scheck, co-

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 Virginia. But it appears that a 7

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

Virginia's criminal justice system, one thing is

certain: Only a handful of the falsely convicted have

received the exonerations they deserve. Since DNA

retesting began in Virginia, two people have been

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, Virginia authorities never did successfully

contact Barbour to acknowledge his innocence. It was

Jonathan Sheldon, a private-practice attorney in

Fairfax, Va. who took it upon himself to contact Barbour

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 Virginia Department of

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 Virginia's

crime lab nor its prosecutors' office is taking that

task seriously. How the Commonwealth of Virginia managed

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 Virginia

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, Virginia's state authorities had no plans to

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 Northern Virginia

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 Virginia was

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 Williamsburg

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 Virginia crime lab for

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 Virginia's

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 Virginia could

have kept his daughter from ever knowing the truth about

her father.

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