New DNA test could exonerate man convicted of 1978 rape
February 5, 2012
Investigators knocked on Bennett S. Barbour's door on Valentine's Day 1978 and arrested him on a charge of raping a College of William and Mary student at gunpoint a week earlier.
"This does exonerate him, so we will be joining in their motion as soon as they make it," said Green, who was in second grade when Barbour was convicted. "From everything that I've seen, this seems to be very clear cut ... and this mistake needs to be corrected."
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When Barbour was convicted, DNA testing was not available.
Deirdre Enright, another of Barbour's lawyers and also with the U.Va. Innocence Project Clinic, said, "I don't know how they found him guilty without DNA." According to documents in the 1978 case file and news accounts of the trial, three witnesses testified that they were with Barbour at the time of the Feb. 7, 1978, attack in the Parkway Apartments in Williamsburg.
Arrest records show Barbour was 5 feet 6 inches tall and weighed 115 pounds at the time. The victim was 5 feet 8 and weighed 135 pounds, Barbour said.
Also, a March 24, 1978, forensic lab report obtained by Barbour's current lawyers shows that even the relatively crude blood typing performed on seminal fluid left by the assailant strongly suggested that Barbour was not the attacker. The seminal fluid was left by someone who is Type A, as was the victim. Barbour is Type B.
And "negro" hairs taken from the crime scene were said to be "not consistent" with a sample from Barbour, the report said.
Still, the jury found Barbour guilty, siding with the identification made by the 19-year-old victim who, according to a probation office report, identified him by police mug shots and in a lineup.
The 1978 lab report from his forensic case file was signed by Mary Jane Burton, the forensic serologist who performed blood typing for what is now called the Virginia Department of Forensic Science in the years before DNA testing was available.
Samples of evidence that Burton taped inside her old case files are now being tested by the department in an effort to clear people wrongly convicted from 1973 through 1988. Barbour's case was among those; the DNA in his case was tested in 2010.
In addition to his smaller stature, Barbour said he had had a pin holding an elbow together at the time of the rape. "I was hardly able to move my arm at all," he said. Enright said Barbour was born with a medical condition that can lead to easily broken bones.
She said his case "demonstrates the power of the 'he said, she said' battle."
Barbour had a solid alibi; he did not match the suspect's description; he has brittle bone disease; and he did not have a gun, said Enright.
"But (the victim's) identification of him still wins that contest."
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The trial judge, Russell M. Carneal, and Barbour's defense attorney, Charles L. Beard, are dead, and the trial transcript is missing. The prosecutor, former Williamsburg/James City County Commonwealth's Attorney William L. Person Jr., now retired, could not recall Barbour's case.
The investigators who worked the case are no longer with Williamsburg law enforcement and also could not be reached for comment. But court records suggest that in 1978, two of them had some doubts about Barbour's guilt.
Barbour's troubles began earlier in 1978 when he rode along in a vehicle driven by a childhood friend who burglarized his employer's business. Barbour, according to police, readily confessed to that crime not long before the rape occurred.
Barbour was arrested for burglary before the Feb. 7 rape; it was apparently that arrest that led police to take his mug shot, which apparently wound up in a photo spread shown to the Williamsburg rape victim.
Barbour had alibi witnesses: his mother-in-law, his brother and a woman "who is of the white race and the only white witness called by the defense," noted a motion to set aside the guilty verdict.
Nevertheless, on April 14, 1978, he was convicted of rape by a jury. On April 17 he was sentenced to 8 years for charges in the unrelated burglary and on April 28 he was sentenced to 10 years in prison for the rape.
In a post-sentence report, probation officer Frederick W. Toepke wrote: "I think it should be brought to the Court's attention that since the Court trial I have talked to the Police Officers who investigated this matter and it is still their personal opinion(s) that perhaps a strong possibility exists that (Barbour) could be innocent of the charge. I was further informed that the investigation of this offense is continuing."
According to the transcript of Barbour's sentencing, Beard asked the judge for leniency. "He has maintained then, now, and at all points, that he was innocent. The evidence you heard was questionable," said Beard.
But at the sentencing the judge said the case "boiled down, as I recall, to a question of credibility, a question of who you believed; and the jury believed, obviously ... the Commonwealth's witness."
Barbour wound up serving 4½ years of his 18-year sentence, making parole his first time up for consideration. Parole was not abolished in Virginia until 1995.
Ward and Mary Anne Miller, a New Jersey couple, hired a Richmond lawyer to argue Barbour's case before the Virginia State Parole Board in 1982 at the request of Mary Anne's mother, Anne Morecock of Williamsburg.
"My mother was very upset about this situation. ... No one believed it, nobody thought he really did it," said Miller. The Morecocks knew Barbour because his mother was Anne Morecock's maid in Williamsburg.
In a letter to the parole board on Barbour's behalf, investigator Fred Dunford wrote, "Having investigated him in the past (not for the rape), I am firmly convinced that Bennett Barbour will not be a threat to the community if he is paroled."
"I do not believe he is a violent person. As you know, he is a victim of brittle bone disease and his bones break very easily. He is also a shy person most unlikely to approach anyone in a violent manner," wrote Dunford.
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Green, the current Williamsburg prosecutor, has briefed the 1978 rape victim on the developments. He said she is handling things as well as could be expected.
"It's a difficult thing for her. She thought this was behind her and now it's back in her life," Green said. "She (feels) some guilt, but she's not forgetting the fact that she was the victim here. And the comment that she made to me was, 'The person who did this has now victimized both of us,'" meaning her and Barbour.
And now, Green said, "She is joining in my concurrence that he needs to be exonerated."
He said he is still weighing whether to bring charges against the man whose DNA was identified in the testing. "It's a 30-year-old case. I'm making sure that all the pieces that would be needed are there," Green said.
Barbour's arrest and conviction for rape has been hard on his family. "It was like a bolt of lightning just came in and shattered everything," said a sister, Maureen.
Barbour was born in Charles City County, the youngest of Dorothy and Spencer Barbour's seven children. His father died in 2008.
According to the probation officer's report, Barbour and his 18-year-old wife lived in the same three-bedroom home of his parents, where Barbour had spent most of his life. Barbour "owns one 1961 Ford Falcon automobile, which currently does not run. He and his wife have no savings or checking account, nor do they own anything of tangible value," the report said.
His sister, Maureen, said, "If Daddy even thought he had done it he would kill him. We were raised strict."
"I went to church somewhat after the time they arrested him and jailed him, and I was in church crying my eyes out. I mean it was terrible. It really did something to the family."
His mother, now 85, never believed her son was guilty. "I've always thought he was innocent," she said. Barbour said his ex-wife, Valerie, brought his daughter, Zekita, born after Bennett was imprisoned, to visit him while he was behind bars.
After his release, he had a career as a chef and cooking became his passion. He also was convicted of several driving offenses and served some time in jail, the result of a drinking problem, Barbour said.
A few years ago, he was diagnosed with bone cancer and is undergoing chemotherapy at the VCU's Massey Cancer Center. On Friday, he was at the hospital after a bad reaction to medication, his lawyers said.
Barbour, who now has three grandchildren, stays in touch by telephone with his 34-year-old daughter, who lives in another state.
One afternoon last month, he was playing cards with a nephew when he got word that a lawyer wanted him to call him. Barbour called the next day and learned there had been DNA testing in his case, something he had sought in 2004 without success.
He contacted the Innocence Project Clinic at U.Va. and soon learned that the DNA results cleared him and implicated someone else.
"I'm like, 'What?' Stunned. Very stunned and relieved," he said. "It was about time I got a break in life because I've been dealing with this for 34 years.
"I would like my name cleared, and I would like some restitution for them putting me away for something I didn't do, and I want everybody to know that I never touched this woman, I never had any contact with this person.
"I didn't get a chance to help raise my daughter like I wanted to. I'm a good man. And I wanted to be a part of my kid's life. They took all this away from me."