DNA Excludes U.Va. Innocence Project Clinic Client Convicted of 1978 Rape

February 6, 2012 —A Williamsburg man convicted in 1978 of raping a College of William & Mary student has been excluded from the crime on the basis of DNA evidence, according his legal team at the University of Virginia School of Law's Innocence Project Clinic. The clinic is now working to have the man's conviction vacated.

Bennett Barbour, now 56, was found guilty of the rape solely on the basis of the victim's eyewitness identification of Barbour, clinic professors said – even though Barbour did not match the victim's previous physical description of her attacker and had an alibi supported by several witnesses.

Barbour was sentenced to 18 years in prison, but was paroled after five years, thanks to friends and family who presented the parole board with exculpatory evidence, such as the fact that Barbour's blood type did not match the victim's attacker.

Barbour's case was among roughly 1,000 DNA samples from crimes dating back to the 1970s ordered tested by then-Gov. Mark R. Warner. The results in Barbour's case came back in 2010 – though only recently came to light – and indicated that Barbour's DNA does not match that of the victim's attacker.

The test also showed that the DNA evidence collected from the victim's attacker actually belonged to a convicted sex offender who is out on parole. The state has not yet revealed that man's identity.

The DNA test "excludes Mr. Barbour from the evidence that was contained in the physical evidence recovery kit, which takes swabs and hair samples from the victim," said Matthew Engle, legal director of the Innocence Project Clinic. "A profile was developed from [the DNA evidence], which was entered into Virginia's DNA database, and it came back as a hit. We don't know who this person is, but we do know it was a person convicted of a sex offense and who is currently on parole."

Deirdre Enright, director of investigation for the clinic, said that the state's DNA testing proves that Barbour was wrongfully convicted, just as he has maintained for more than three decades.

"He and his family say that he's waited ever since this happened to be exonerated," she said.

When Barbour was first told that he had been excluded from the rape on the basis of DNA testing, she added, he replied: "I know I'm excluded. I've been saying that all along." The Virginia Attorney General's Office has ordered a second DNA test to verify that Barbour was excluded from the crime. If the second test verifies the original result, Enright said, the Innocence Project Clinic will then file a petition for a writ of actual innocence with the Supreme Court of Virginia requesting that Barbour's conviction be vacated.

Third-year law student and clinic participant Ashley Brown will likely draft the petition.

"We're still in the very preliminary stages of the case, but based on what we know so far, it seems incredible that he could ever have been convicted on the basis of the evidence they had at the time," Brown said. "So having DNA now is obviously really great, but even outside of DNA, he had a very strong case."

According to the clinic, the victim originally told police investigators that her attacker was 5 feet, 6 inches tall and weighed 145 pounds. Arrest records show that, at the time, Barbour weighed only 115 pounds.

Plus, Barbour suffers from a brittle-bone disease that has resulted in 57 broken bones in his lifetime and that the clinic contends would have made it impossible for him to physically restrain the victim. Just prior to the attack, Barbour had been released from the hospital and had a pin in his arm, making it even less likely that he could have physically assaulted the victim.

He's a very fragile and tiny guy," Enright said. "He can break a bone doing almost nothing. We've been told that the victim was bigger than him."

Law enforcement also appeared to ignore the fact that there were other rapes in the same vicinity and in the same time period, Enright said, and alternate suspects were specifically named in newspaper articles in 1978.

"Mr. Barbour's case clearly demonstrates the power of a victim's eyewitness identification," Enright said. "The glaring weaknesses and evidentiary inconsistencies in a case are often dwarfed by the simple words: 'It was him.'" Barbour also had an alibi at the time of the attack. According to his alibi, he and his brother had driven to his mother-in-law's apartment – 30 miles away from the crime scene – where the three of them and a neighbor watched a soap opera together, which pinpointed the time. "The only evidence presented against Barbour at trial was the victim's eyewitness identification of him, which wasn't made until a week after the rape, and which didn't match her initial description of the attacker," Engle said. "It was her word against his, but the jury had to ignore all of the inconsistencies and the alibi witnesses in order to convict him."

Engle and Enright criticized the state's DNA testing and notification process, which they contend is opaque and fails to promptly inform people who have been excluded from crimes on the basis of DNA evidence.

"The process has been very secretive and closed off to the public. Nobody knows what testing is being done [or] what order it's being done in," Engle said. "One of the big issues is that people aren't being notified of the testing, at least not in any kind of an effective way."

In Barbour's case, the state notified the commonwealth's attorney in Williamsburg about Barbour's DNA results in 2010. Enright said the commonwealth's attorney sent a letter to an outdated address of Barbour, so he did not receive the notification.

In early 2012, the state lab agreed to provide about two dozen names of people whose DNA results had resulted in exclusions to Jonathan Sheldon, a volunteer attorney in Fairfax. Within days of receiving this information – and 18 months after the state's first attempted notification – Sheldon found Barbour at home and notified him of the favorable test results. "This was not rocket science," Engle said. "Mr. Barbour is listed on whitepages.com. It's just that Mr. Sheldon was highly motivated to make this notification, and it appears that the Commonwealth was not." The same day, Barbour contacted the U.Va. Innocence Project and asked them to represent him.

Enright said she managed to track Barbour down in a matter of minutes by searching on the Internet. Enright also managed to locate the victim within 24 hours using the Internet. She provided the victim's contact information to the Commonwealth, who also had not found or notified her in the previous 18 months.

After his release from prison, Barbour struggled to find work, as few employers wanted to hire someone who had been convicted of rape. Eventually, a family for whom Barbour had worked prior to his conviction helped him secure a job as a chef at a Richmond hotel's restaurant.

Today, Barbour is back living in the Williamsburg area, where he is helping to take care of his elderly mother.

He also is fighting cancer, and drives frequently to Richmond for chemotherapy at the Medical College of Virginia.

"Mr. Barbour's [view] is, 'I'm dying of cancer. I find out there's a chance to do the thing I've wanted to do. I'm doing it now. We need to move,'" Enright said.

U.Va. law professor Brandon Garrett, author of "Convicting the Innocent," which examined the cases of the first 250 people to be exonerated by DNA testing, said Barbour's case has a number of similarities to other DNA exonerations.

"When researching my book, I found that 76 percent of the first 250 people exonerated by DNA testing had been misidentified by eyewitnesses," he said. "Typically, the eyewitness was sympathetic, the victim of a serious sexual assault, and certain of the identification. The eyewitnesses confidently identified defendants at trial, even though the defendants often did not fit initial descriptions to the police, and even though they were often not so sure when they first saw defendants in a lineup."

Brown, the law student working on the case, said Barbour's fate underscores the importance of the Innocence Project Clinic and its efforts on behalf of the wrongfully convicted.

"The clinic helps correct things when the justice system has gotten it wrong," she said. "It's hopefully never too late to win justice for people like Mr. Barbour."

— By Brian McNeill