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Final Hours 
Covington partner Seth Tucker puts everything on the line as his client nears execution 

Jake Richardson

Legal Times 

September 20, 2000 
 


Seth Tucker
 
At 8:45 on Thursday night, the two guards at Greensville Correctional Center told Derek Rocco Barnabei it was time. 

They asked Barnabei's attorneys -- including Covington & Burling partner Seth Tucker -- to step into the viewing room. In a few minutes, a Roman Catholic priest would walk Barnabei to the gurney where he would be strapped down and executed by lethal injection. 

Tucker looked dismayed. He thought he would make the walk, too, but the guards told him that was not allowed. 

Before the quarrel escalated, Barnabei told his attorneys he would be all right. Afterward, Tucker found out the two guards were trainees, and that he should have been permitted to escort Barnabei to the injection chamber. 

"They could not even get that right," Tucker said later. 

Tucker, a commercial litigator in Washington, had spent the previous weeks in a steadily escalating frenzy to stave off the execution of his client. 

But the last two days in particular had been a whirlwind of activity, the likes of which most lawyers never experience: litigation running simultaneously on several tracks; a growing storm of international media interest; the presence and pressure from the condemned man's family and friends; and the very real possibility that his client -- a man convicted of the rape and murder of a 17-year-old college student in 1993 -- would be the 79th man executed by Virginia authorities since 1976. 

WEDNESDAY MORNING

The clock shows 9:12 when Tucker, who has already been working for two hours, walks into the Virginia Capital Representation Resource Center in downtown Richmond on Sept. 13. For the past two days, Tucker has lived out of a nearby hotel and worked mostly out of the center, located opposite the courthouse for the Eastern District and the 4th U.S. Circuit Court of Appeals, on East Main Street, near the state capitol. 

The first thing he does as he walks into the fifth-floor office is look on the fax machine for the attorney general's reply to his appeal to the 4th Circuit, asking the court to allow Barnabei to block the proceedings on the grounds that the state had mishandled biological evidence it had tested the week before. 

At 9:48, Barnabei calls. Tucker scribbles away, rarely finishing a sentence as they talk. 

"I hope I don't see you tomorrow," Tucker says, just before hanging up. 

Tucker's next order of business is sifting through the rumors of the day: A journalist may have discovered a vial of Barnabei's blood missing from the state's evidence room. There's another report that the government is concealing test results from some of the genetic material examined by state forensic scientists over the weekend, and a third rumor about inconsistencies with the evidence envelope that state authorities had temporarily misplaced a week earlier. 

Covington associates Amy Levine and Gerard Magliocca call from Washington to tell Tucker that, contrary to what they had been told before, the DNA recently tested by the state was not from blood. 

At 9:55, Tucker calls state forensic pathologist Dr. Paul Ferrara to find out if any of the rumors are true. 

Minutes later, Frank Slaton, Barnabei's private investigator, calls about the evidence envelope. Slaton is followed by Tony DiPiazza, a Barnabei supporter from New York, demanding that Tucker hold a press conference immediately to raise new questions about the tests. 

Tucker, who has not yet scheduled a press conference, tells DiPiazza in a frustrated voice: "We have to confirm these facts. A press conference can be done only once today. Nobody is coming back" for a second one. 

At 10:54, the attorney general's brief arrives. It says the results of the DNA test of victim Sarah Wisnosky's fingernail clippings show "that the DNA profiles of Wisnosky and Barnabei were the only two found. ... Under these circumstances, it is nothing short of impossible for Barnabei to make the clear and convincing showing of the innocence required" to have the habeas petition granted. 

Ferrara calls at 11:30, giving Tucker hope. The material collected from the two fingernail clippings doesn't help his case, but it doesn't hurt. One fingernail reveals only Barnabei's skin tissue. The other has only traces of Wisnosky's own blood. 

"It just proves what everybody knew, and that is that they were intimate," Tucker says to a reporter on the phone. "Nothing more." 

He hangs up the phone and sits, pensive. "We have to figure out what to do," he says to resource center attorney Michele Brace. "Do we respond to the state? Do we hold a press conference? Do we file something to the 4th Circuit?" 

WEDNESDAY AFTERNOON

At 12:17, Tucker faxes a supplement to his appeal from the denial of the first habeas petition to the U.S. Supreme Court, arguing that the newly tested DNA evidence is inconclusive and leaves unanswered questions about the case. 

At 12:33, Barnabei calls, asking Tucker to call the governor about the rumors regarding the new evidence. 

"It's important the governor knows the press is on this," Tucker tells Barnabei. "But I don't think the governor is going to do anything." 

A television news team from the ABC affiliate walks through the door at 12:44. "Is Seth here?" the reporter asks, believing Tucker, working from the front desk, to be the receptionist. 

Tucker identifies himself. The reporter confirms that Gov. Gilmore has said that Barnabei's blood was found under the fingernails, when in fact it wasn't. 

"Now we have a story," Tucker says. 

He then asks the reporters in the office, "What's the latest I can hold a press conference?" 

One answers, "Two o'clock." 

The constant media attention as Tucker occupies himself with phone calls and drafting, reading, and faxing documents takes him by surprise. "I thought this would be boring for the press," he says. 

He heads for the press conference at the steps of the federal courthouse, where he assails the state's evidence. Tucker's press conferences are aggressive. It's a skill he developed out of necessity, not enjoyment. 

He returns to the office at 2:40 and begins the second petition for certiorari to the Supreme Court. 

At 3:14, he calls Linda Goldstein, a New York partner at Covington who has worked on the case with Tucker. They decide to file a clemency petition even though the governor said in a press release on Monday that he would not consider clemency. 

At 3:22, a Fox News station calls for a statement. 

At 3:39, Channel 8 calls, wanting to profile the Italian journalists following the case. Then DiPiazza calls, wanting to know how the press conference went. 

Tucker says it went well, adding, "It may have been our last attempt to embarrass the governor into doing the right thing." 

At 3:53, a fax comes over, revealing that the 4th Circuit affirmed a lower court's dismissal of Barnabei's claims. The ruling is based on procedural grounds. 

"It could have been worse," Tucker says. "If we lost on the merits, we would have no grounds to seek cert in the Supreme Court." 

Barnabei calls again at 4:57, and Tucker delivers the bad news but says the press conference was successful. 

"You'd have been proud of me," Tucker says to Barnabei. 

At 5:12, Levine calls Tucker to tell him that Barnabei's ex-wife Paula Barto, who testified against Barnabei during the sentencing phase of his 1995 trial, is hoping their 11-year-old son might speak to his father before he dies. 

Later, Tucker calls Magliocca and Levine back, asking them to help get Barnabei on the phone with his son. Levine can't get past the man answering the phone at Barto's house, who threatens to sue if they call again. 

"We need to organize this so she can pull the kid out of school tomorrow," Tucker says to Levine. "It may be the boy's last chance." 

Barnabei never spoke to his son again. 

At 6:27, Tucker faxes a round of edits of his latest Supreme Court petition to his associates in Washington. For the first time, Tucker makes small talk with his colleagues on the phone. For them, the case has been a crash course in legal writing. 

"I saw the time on your e-mail last night. You must be beat," Tucker says to Magliocca. "The petition looks good. This should capture their attention." 

At 7:00, Tucker and Brace leave for an hour. They nurse a beer over dinner, and cathartically talk about other cases. 

At 9:08, Tucker begins reading the petition before sending it back to Magliocca. He leaves for the hotel, where he stays awake until 2 a.m. waiting for Magliocca to fax the final version. Unbeknownst to Tucker, the hotel desk received a copy at 11:30, but didn't notify him. 

THURSDAY MORNING

Brace gets to the office before Tucker, fielding Barnabei's call. Tucker arrives moments later. 

"I'm going to write a letter to the governor, requesting that DNA testing be done after the execution, if there is one," he says. 

He doesn't get far composing the letter before the fax arrives from the Supreme Court, denying Barnabei's first petition for cert. Later, Tucker describes the moment as a punch to the stomach. 

Tucker looks to Brace and asks, "Should I call Derek now or wait -- " She cuts him off. "Call now," Brace says. 

Tucker closes the door behind him. The conversation doesn't last long. "It was the toughest call I've ever made," Tucker says. 

At 10:24, he calls Barry Scheck, hoping the high-profile lawyer will continue to fight for the cause, to keep the evidence from being destroyed. 

Court TV calls Tucker at 11:07 to ask about doing a package before the execution. Tucker suggests a replacement: "What about Alan Dershowitz. If he'll do it. ... Before the execution, I just don't think I'll be up to it." 

It's the first time he doesn't add, "If there is an execution." 

Moments later, Tucker is on the phone with Dershowitz, who agrees to go on Court TV. Tucker runs down the facts of the case and adds that Barnabei is a charming and articulate man, which is one reason why the case has garnered so much attention. 

THURSDAY AFTERNOON 

At 12:19, the resource center is notified that Walter Mickens Jr., another death row client, has been granted a new trial by the 4th Circuit. It's a bittersweet victory. The lawyers at the center keep a bottle of champagne in the refrigerator for such occasions. It's been there for several years, but will have to be drunk another day. 

Tucker calls Levine at 1:59 to file the response to the attorney general's Supreme Court brief in favor of going forward with the execution. 

Knowing the brief will not be successful, Tucker does not wait for the court's response. "I wanted to get down to the prison," he says later. "I felt like I was wasting time because I wanted to spend time with Derek. But I had to do it for Derek and myself, so that I knew that I did everything I could to increase his odds." 

An hour later, Tucker walks over to the governor's office, delivering the letter requesting post-execution DNA testing. 

At 4:15, Tucker leaves for Jarratt, where the Virginia death house is located. He doesn't wait for the Supreme Court ruling on the second petition. 

THURSDAY EVENING

The ride to the Greensville Correctional Facility from Richmond takes about an hour. The guards tower over Tucker as he enters the prison. It takes 30 minutes for guards to process Tucker and pat him down before he sees Barnabei. 

Shortly after Tucker joins Barnabei, Tucker learns on the six o'clock news that the governor has denied the clemency petition. 

Around 7, the prison operations manager pulls Tucker aside and tells him the Supreme Court has denied the second cert petition. 

"It didn't even phase me," Tucker says later. "I knew it was over when they denied the first request." 

On the drive home from Jarratt, at about 10 p.m., Tucker describes his last few minutes with Barnabei as being alternately humorous and philosophical. "It was a good time together," Tucker says. "Not a good time, but good time." 

Barnabei held a phone the entire time, his mother on the other end. Barnabei wrote out a will in front of Tucker and prepared his final statement for Tucker to read after the execution. He selected a passage from Psalm 55, verse 18. 

Tucker told him he would say the Shema, a Jewish prayer, during the execution. Barnabei asked him if he wouldn't mind saying it in front of him, too. 

After Tucker was led to the execution viewing room, the drapes were drawn and he could hear Barnabei, through the glass, saying the psalm: "He hath delivered my soul in peace from the battle that was against me: for many were with me." 

At the same time, Tucker quietly recited the Shema. 

Tucker says it will be a while before he takes another capital case and will likely never take another one in Virginia. 




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