The Exoneration of Bennett Barbour
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?
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.
Dahlia Lithwick writes about the courts and the law for Slate.