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"The Barnabei case represents one of the most egregious miscarriages of
justice and one of the most compelling cases of innocence I have ever seen in all my years
of practicing law."
Alan Dershowitz, Professor of Law, Harvard University
"You have a better chance in America to receive justice if you are rich and
guilty than if you are poor and innocent."
Barry Scheck, Innocence Project, Cardozo School of Law
In August of 1993 while on a trip to Norfolk Virginia Derek Barnabei, who had no
prior violent criminal record, was to become the prime suspect in a rape and murder of his
grilfried, a college co-ed at Old Dominion University. Under extereme political
pressure to solve the crime, the police had committed a criminally negligent investigation
to manufacture evidence to fit their unfounded theory of the events.
Derek became the prime suspect based on the fact that he had only recently arrived in
Norfolk, and the murder had taken place in an easily accessible room of a fraternity house
in which he had been staying. In the early hours of his arrest the Norfolk Police
Department gave Derek a polygraph test that resulted negative. Conveniently, the
records of the test were never to be found.
During the Commonwealth's investigation of the crime scene 60 pieces of forensic evidence
were collected. The 60 pieces of evidence were logged into the evidence room of the
Norfolk City Police only 12 pieces, of circumstantial evidence, were actually tested, 38
were left untested and the remaining 10 are now missing from the evidence room.
While awaiting trial in the Norfolk City Jail the Prosecution, aware of the weakness of
the case, offered Derek a plea to a lesser charge which would have resulted in only a 7
year sentence. Derek armed with the knowledge of his innocence flatly refused the plea and
trusted that the Judiciary would find him innocent.
When the date of the trial arrived Derek's attorney, James O. Broccoletti, had done little
or no preparation in his defense, believing he was guilty. Derek had maintained the story
of events that took place up to the time of the murder, however his lawyer did not
investigate further into these claims. When the witnesses for the prosecution
testified to the exact same events during the trial, Mr. Broccoletti stated to Derek's
mother, "Oh my God, we have an innocent kid here!"
Needless to say Derek was found guilty of the crime, not because of the evidence against
him, rather because of the ineffective counsel and criminally negligent police
investigation. Derek has maintained his innocence from the day he was arrested.
He refused to plea bargain and trusted an attorney he believed was protecting him.
Today he sits on Death Row and is quickly exhausting his appeals. Derek has
asked Virginia to test the remaining evidence saying, "What would you have to lose,
if you think I am guilty then it would only strengthen your claim." Would a
guilty man want that?
Derek's case has garnered attention nationally and internationally. As the nation
reexamines the application of the Death Penalty it should take a good hard look at the
circumstances of Derek's case and wonder could this happen again? |
The State's Case
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The state presented the trial jury evidence that the victim, Sarah Wisnosky, was
violently murdered sustaining multiple blows to the head with an heavy blunt object. The
state never recovered the object. At trial the state showed the jury a large new
ball peen hammer as an example of what they guessed the murder weapon might have been and
stated that Derek had stolen such a broken and rusted ball peen hammer.
There was no evidence of rust about the victim's wounds. The hammer Derek is accused
of having stolen was much smaller and lighter than the murder weapon described.
There was no testimony that the wounds were consistent with the head of hammer blow, just
an heavy blunt object. A police-style billy club was in the possession of one of the
other occupants of the house where the murder occurred, and is seen in a
photo in police evidence taken at the house.
This might have been the murder weapon.
The state showed that Ms. Wisnosky sustained vaginal bruising and an anal tear, and
suggested rape occurred based upon expert testimony that violent or forcible sex caused
these injuries. This suggestion and testimony were never rebutted at trial by Derek's
counsel. A federal court has since found that Derek's trial counsels' poor performance and
errors fell below the minimum Constitutional requirements. It is undisputed by Derek that
he and Ms. Wisnosky had engaged in various consensual sexual activities during their
relationship. Derek's habeas counsel has obtained affidavits of two physicians testifying
that Ms. Wisnosky's injuries are consistent with consensual, vaginal and anal sex.
Even the prosecution’s own expert at one point did opine that "generic rough
sex" could have accounted for the injuries, apparently consensual or otherwise.
Police recovered Ms. Wisnosky's body from the Lafayette River but determined that she had
been murdered in a house occupied by Derek and four others. Police searched Derek's
room and found evidence of her blood in his room. The police never investigated any
other part of the house, even though the victim's body was removed from the house
obviously creating the opportunity to find evidence at least in hallways, doorways or
window areas or the driveway. Police focused their attentions on Derek never
investigating any of the other four occupants of the house, their rooms, belongings or
vehicles, even though there was information that Ms. Wisnosky had on one occasion
spent the night with one of the other residents of the house, Michael Bain, and on
one other occasion two or three men were removed from the house after they attempted to
force Ms. Wisnosky to have sex with them. The house is now unoccupied and up for sale,
whatever physical evidence that may have lied in it has either been already lost to time
or likely will now be eradicated upon new ownership.
The DNA expert also found blood underneath the victim's fingernails, on one of her
shoes, on a surfboard, a washcloth found at the river and towel recovered at the house and
found hairs and fibers on socks and the towel and washcloth.
 | A bloodstain under the carpet was found to be human but never analyzed to identify
the source.
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| Pubic hairs found on the socks were found under a microscope to be consistent with
Ms. Wisnosky's but not with Derek.
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| While the state relied heavily on the victim's body telling its story with regard
to cause of death, here, however, key evidence taken directly from the victim's body was
virtually ignored.
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| The bloody fingernail obtained from the victim was never tested in any manner even
though it is textbook police procedure to test such evidence because victims of violent
crime often scratch their attackers.
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| In May 1994, chief police investigator on this case, Shaun Squyres, directed the
police lab not to test 13 items previously submitted for testing including the fingernail
clippings.
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| Derek has repeatedly asked for modern DNA analysis of the fingernail, further
testing and questioning by the prosecution would have brought this to light.
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| The pubic hairs and a limb hair recovered at the scene, and of blood from the bed
and a washcloth found near the victim's body at the river were never tested. The
technology available today could let the victim tell her story even from the grave
but Derek's requests have been denied time and again.
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| Based upon the location at which the victim's body was found at the river, it
appears to have been deposited into the river at a sandy spot along the opposite bank to
where the shoe and washcloth relied upon by the state were found. Sandy socks to
which a pubic hair of the victim was adhered, and sandy man's shoes that did not belong to
Derek were found at the house. They were never examined.
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| The socks were supposed to be Sarah's but she was allegedly placed in the river
naked, yet no one examined sandy socks found at the house and not at the river and no
connection was made to sandy shoes belonging to an unknown person found at the house as
well. The sandy shoes have since disappeared. A photo was taken of the trashcan at
the house shows plastic bags of garbage and bed sheets but they were never looked into and
have since disappeared. |
The prosecution’s story was pieced together from
testimony primarily of other residents of the house all of whom should have been suspect
but were never even considered by the police. Derek has consistently denied the
veracity of their testimony. There are documented inconsistencies between the
testimony of occupants of and visitors to the house regarding events and the timeline of
events the night of the murder. |
The state presented no direct evidence linking Derek to the crime.
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None of the house occupants claim to have seen or heard the
murder. |
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No eyewitnesses claim to have seen disposal of the body.
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The victim's body was transported from the house to the
river but a thorough search of Derek's car showed no evidence connecting him to the crime.
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There is ample evidence missing. and
Evidence tampering |
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