Daily Press

Man released in 1991 murder case sues Newport News, police officers for $25 million
David Boyce, who spent 23 years in prison before his convictions were reversed, claims police acted recklessly

May 30, 2014|By Peter Dujardin, pdujardin@dailypress.com
NEWPORT NEWS — A man whose 1991 capital murder conviction was overturned last year has filed a $25 million lawsuit against the city of Newport News and several past and present police officers — accusing them of conducting a reckless investigation against him decades ago.

The lawsuit contends that crucial evidence in David W. Boyce's favor was repeatedly withheld, causing him to get "robbed of over 22 years of his life and freedom" for "a crime he didn't commit."

"Even more tragically, Boyce's wrongful conviction and continuing incarceration were no inadvertent mistake," asserts the complaint, filed in U.S. District Court in Newport News. "They were caused by the intentional, bad faith, or alternatively, reckless acts of Defendant officers."

Boyce, 44, was freed last year after a federal judge reversed the convictions.

In 2010, a Norfolk judge wrote that the failure to turn over the crucial information — including a Polaroid picture — was an unintended mistake. "The court finds that the commonwealth unwittingly suppressed material exculpatory evidence and compounded this error with false testimony," Circuit Judge John R. Doyle III wrote at the time.

But throughout the 69 pages of the hard-hitting lawsuit, Boyce's lawyers paint a different picture, asserting that the failure to turn over that exculpatory photo — as well as many other issues with the case — was part of a deliberate plan to get Boyce convicted.

It contends, for example, that the picture was "intentionally excluded" and "concealed" in order to "deprive Boyce of the use of the photograph at his trial."

The suit also contends police homed in on Boyce to the exclusion of other leads, used a bad jailhouse informant, ignored crucial forensics tending to clear Boyce, failed to properly interpret the workings of a tracking bloodhound, and focused on a knife as the murder weapon that didn't match the victim's wounds.

Thomas E. Bennett, the lead investigator in the 1991 case and now Suffolk's police chief, is listed as the first defendant. Other defendants are Patricia Montgomery, the lead forensics technician on the case, and several "current and former" officers.

Though Bennett and Montgomery no longer work for Newport News, the city is on the hook to pay any judgment against them.

The city of Newport News itself is also named as a defendant — accused of, among other things, providing "inadequate training and supervision" of officers and employees.

In April 1991, a Newport News Circuit Court jury found Boyce, then 20, guilty of capital murder and robbery in the slaying of Timothy "Kurt" Askew, 35, at an Econo Lodge on Jefferson Avenue in Oyster Point. Though prosecutors sought the death penalty, the jury gave him two life prison terms.

After years of court battles, the major turning point in Boyce's fight to prove his innocence came in March 2013, when U.S. District Judge James Spencer reversed Boyce's convictions and two life sentences, ruling he received an unfair trial in 1991.

The reversal came largely on the basis that a crucial piece of evidence in Boyce's favor — the Polaroid picture — wasn't shared with his trial defense attorney. The picture showed Boyce with short hair, rather than the "shoulder-length" hair that a motel clerk described a suspicious man lurking near the crime scene as wearing.

At trial, Montgomery testified that Boyce had long hair when he was first arrested, providing a link to the "long-haired man" that prosecutors later used in closing arguments. That testimony was disproved by the Polaroid — 17 years later.

"Defendant officers withheld the Polaroid from (prosecutors) and consequently from Boyce and his counsel, and concealed its existence," the lawsuit asserts. That gave prosecutors "the opportunity to argue to the jury in closing arguments that Boyce … was the man seen fleeing the scene of the crime."

The suit claims that officers "wrongfully failed and refused" to come forward with that evidence for years. After years of denials of its existence, the Polaroid was finally turned over in 2008 — found sitting in a box of investigative materials labeled "Boyce."

The complaint was written mainly by attorneys with Winston & Strawn, a large Chicago-based law firm that handled the last two years of Boyce's push to get released from prison. The Virginia attorney on the case is Lawrence H. Woodward Jr., who also worked on the effort to free Boyce.

Deputy City Attorney Darlene Bradberry said Friday that the city had not been served with the suit. She said the city would review the suit and "file an appropriate response with the court" when the time comes.

Reached at the Suffolk Police Department, Bennett would not comment. "I'm not going to talk about it," he said. His lawyer, Alan Rashkind — hired by the city of Newport News to defend Bennett — did not return a phone call Friday afternoon.

Police/Prosecutor Misconduct

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