The Exoneration of Bennett Barbour

Dahlia Lithwick
March 12, 2012

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.

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.”