Is the Virginia State Government Incompetent—or Are They Trying To Cover Up Mistakes That Put the Wrong Men in…

The law, lawyers, and the court.
March 12 2012 7:02 PM

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?

Bennett Barbour.
Bennett Barbour as a younger man

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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:

120309_JURIS_letter-EX

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.