"With Liberty and Justice for Some" |
 These are not the words of the Pledge
of Allegiance, but they are the reality in Virginia where Derek Barnabei sits on death
row, convicted of a murder for which there is no eyewitness, no weapon, no motive,
inadequate investigation, and no conclusive physical evidence.
Derek has steadfastly maintained his
innocence from the beginning. He was convicted in a trial where he was represented
by counsel who were later found to be constitutionally ineffective and who failed to rebut
the Commonwealth's inadequate and slanted presentation of the evidence..
Examining the wealth of evidence never
presented at trial, alongside the Commonwealth's selective and misleading presentation
leaves us to ponder these chilling questions:
how
could this happen in America and could it happen to me? |
Allegation and Truth:
|
Allegation:
The Commonwealth tried to establish that the murder was
committed between 12am and 12:30am based on Bain and Wirth's testimony that Derek did not
answer their knocks on his door when they went to complain about
loud music coming from his room.
Truth:
Bain
and Wirth's testimony suggesting that Derek was murdering Sarah between midnight and
12:30am is completely irreconcilable with the testimony of four other
prosecution witnesses. Ross Fivored, Jason
Silverstein, Roland Gee and even Adrian Tate, a close friend of Sarah Wisnosky, all
testified that they saw Derek between 12am and 12:30am at a party some distance from scene
of the murder. This irreconcilable testimony
alone demonstrates that Derek was not even at the house at the time of the murder, but
Derek's defense lawyers made little mention of this during their closing arguments.
Allegation:
The
Commonwealth claims that exhaustive DNA testing proves Derek's culpability for the murder
because his sperm was found on a vaginal swab from the victim.
Truth: The Commonwealth made DNA evidence a cornerstone of its case, but the
evidence proves absolutely nothing. Although the Commonwealth tested a great number
of items, including several bloodstains, hairs, and vaginal swabs, these numerous items
ultimately proved only two things: 1) The blood found in the room was Ms. Wisnosky's, and
2) Derek's semen was found in Ms. Wisnosky's vaginal swabs. Given that Ms. Wisnosky
and Derek had a consensual sexual relationship and he readily admits that they had sex on
several occasions during the day prior to the murder, it is to be expected that his semen
would be found on the vaginal swabs.
What the Commonwealth never mentioned at trial, however, was that it had specifically
ordered the DNA lab not to test the most potentially probative piece of DNA evidence: Ms.
Wisnosky's fingernail clippings. Because rape and murder victims often scratch their
assailants, it is textbook police procedure to test material taken from underneath
victims' fingernails. Initially, the Commonwealth's lab prepared to follow this
procedure and had slated the nail clippings for DNA testing. However, in May 1994,
the chief police investigator on this case, Shaun Squyres, suddenly ordered the DNA lab
not to test the fingernail clippings. The Commonwealth's deliberate refusal to
examine evidence which could demonstrate Derek's innocence and another person(s)' guilt
has grown even more absurd and unjust as the prosecution has actively blocked Derek from
gaining access to the fingernails in order to have them independently tested, at no
expense to the Commonwealth.
Derek has repeatedly asked for modern DNA analysis of the fingernail clippings, the sperm
from the vaginal swabs, which could reveal a second male semen presence, pubic hairs and a
limb hair recovered at the scene, and blood from the bed and a washcloth found near the
victim's body at the river. The technology available today, which was unavailable
at the time of trial, could vindicate Derek and
help bring to justice the real murderer(s), but Derek's pleas have been denied time and
time again.
Allegation:
The
Commonwealth's medical examiner testified that the victim sustained vaginal bruising and
an anal tear, and concluded that violent or forcible sex
caused these injuries.
Truth:
Derek's lawyers did nothing to challenge this testimony despite the fact that the
medical examiner's allegations ran contrary to the bulk of medical literature on the
subject. They introduced no medical treatises or articles rebutting the medical
examiner's allegations and consulted none in preparing the cross-examination. Derek
requested funds to hire a medical expert to refute the medical examiner's conclusions, but
Judge Rutherford denied the request. Derek's appellate counsel has since obtained
affidavits of two medical experts stating that Ms. Wisnosky's injuries were consistent
with consensual sex, and has collected numerous articles and treatises affirming this
conclusion. Based upon this, a federal court found that Derek's trial counsel's poor
performance and errors fell below the bare minimum required by the Constitution. One
of the jurors who convicted Derek, when shown the
affidavits of the two medical experts, swore out an affidavit stating,
"If I had heard this evidence, or similar testimony, at the time if trial, or if
similar evidence had been developed through cross examination,
I would not have voted to convict Mr. Barnabei of
rape."
Allegation: The Commonwealth presented the trial jury evidence that Sarah Wisnosky was
killed by multiple blows
to the head with a heavy blunt object and mechanical asphyxiation.
The state never recovered the murder weapon.
Truth: At trial the Commonwealth 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 been seen possessing only a small ball peen hammer.
The prosecution neglected to mention that the
hammer Derek possessed was also broken and rusted, as documented in an investigative
interverview with the hammer's former owner, and that no evidence of rust was found in the
victim's wounds. David Wirth, one of
Derek's housemates, had police-style billyclub in his weapons collection that could have
been used to inflict Sarah Wisnosky's fatal wounds.
Yet,
the police never examined the billyclub.
Allegation:
The
prosecution seized upon Derek's departure the day after the murder as evidence of flight,
alleging that he suddenly left Virginia to evade authorities.
Truth:
Again,
the prosecution turned a purposeful blind eye to the facts.
Derek left Virginia on a pre-planned trip to visit his mother on her
birthday and to conduct some business in New Jersey.
He had told his friends on campus about this trip the day before the murder
and let them know that he was coming back in a week.
As evidenced in the crime scene photos, Derek left his furniture, personal
address book, business contact information and other belongings in his room, taking only
his clothes with him to clean at home.
Derek
learned of the murder only after he had left Virginia.
A fraternity member paged him and told him to steer clear of Virginia
because he was a suspect, but reassured him that the fraternity member knew who committed
the crime and that he would tell the police.
Once
again, Derek made the terrible mistake of trusting the fraternity brothers, and he went to
Ohio to await word of real murderer(s)' arrest.
The
prosecution alleged that Derek called back to Norfolk to ask the fraternity member whether
he "had heard anything?", but it produced no records supporting this version of
events. Phone and pager records would
demonstrate that Derek was paged and simply returned the call, but these pager company
claims to have destroyed the pager records.
Allegation:
Commonwealth produced testimony that Derek had been
aggressive with his ex-wife and an old girlfriend.
Truth:
Derek's
ex-wife appeared "coached" by the prosecution as she "spontaneously"
described alleged assaults from Derek that neatly fit particular parts of the
prosecution's case--all before the prosecution asked her particular questions about this
alleged conduct. A very different picture was
painted by the testimony of two of Derek's former girlfriends who testified that he was
never abusive to them, even when one of them tried to provoke him.
Allegation:
The
Commonwealth solicited testimony from several witnesses that Derek had yelled at Sarah
while they watched a movie several hours before the murder.
Truth:
The
only witnesses who testified that Derek yelled at Sarah during the movie were Derek's
housemates and a fraternity member.
The one
witness who was not a fraternity member or housemate,
Andrea McKelvy, and who had met Derek only once, swore out an affidavit
stating that during the movie, Derek "would call Sarah's name in a sing-song voice,
'You're falling asleep'… He gently nudged her and spoke to her as you would speak to
a sleeping child… He certainly never
shouted at her face."
Allegation:
The
Commonwealth suggested that Derek's use of an alias after he fled Virginia was evidence of
his guilt.
Truth: Derek had been using his father's first
name (Serf) long before the murder because he had a credit problem in New Jersey.
His use of an alias after he left Virginia was
nothing new.
LADIES AND GENTLEMEN, THESE SLANTED AND
UNSUBSTANTIATED ALLEGATIONS WERE THE COMMONWEALTH'S ENTIRE CASE.
OVERWHELMING EVIDENCE?
MORE LIKE OVERWHELMING DOUBT.
From
the moment the police discovered blood in Derek's room, they had their man.
The "investigation" after that point
ceased to ask "who?" and simply became a focused search for evidence that could
be used to prosecute Derek. The police made
no effort to explore the possibility that anyone else had murdered Ms. Wisnosky.
They never investigated any of the other four
housemates, their rooms, belongings or vehicles, even though there was good reason to be
suspect: Ms. Wisnosky recently spent the night with one of the other residents of the
house, Michael Bain, and a week before the murder two men were removed from the house
after they attempted to force Ms. Wisnosky into a bedroom. There is no evidence that the police ever
thoroughly searched any other part of the house.
The prosecution's story was pieced together from innuendo and inconsistent
testimony, primarily of other residents of the house and members of the fraternity.
Beyond
the substantial inconsistencies and distortions described above, numerous pieces of
evidence were destroyed, lost, or improperly analyzed.
 |
In
addition to ordering lab technicians not to test the bloody fingernail clippings,
Detective Squyres directed the police lab not to test 12 items of potentially exculpatory
value that had previously been submitted for testing. |
|
The
pubic hairs and a limb hair recovered at the scene, and blood from a washcloth found near
the murder scene, were never subjected to DNA testing, despite their obvious potential
exculpatory value. |
|
Based upon where the victim's body was found in the river, an expert in river
currents opined that the body was likely deposited into the river at a sandy spot along
the opposite bank from where the body was recovered. His opinion is consistent with
two sandy items of evidence shown in crime scene photos discarded in the trash: 1)
a pair of men's shoes with sand on them, and 2) sandy socks containing a pubic hair
identified as coming from the victim. The shoes were not Derek's, but the police
never tested them to try to determine whose they were. |
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A
photo was taken of the trashcan at the house shows plastic bags of garbage and clothing,
but these were never collected and have since disappeared.
|
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A
number of pieces of crucial evidence were never found or have been "lost."
The murder weapon was never found. The victim's clothes were never found. The
victim's watch, which could have revealed the time of death and presented Derek with a
confirmed alibi, was found on the victim's body but mysteriously disappeared from police
custody. |
|
Evidence
Tampering:
There
is reason to be concerned about evidence tampering.
In
light of the strong possibility that the victim's body was deposited on the opposite shore
from where it was recovered, the "recovery" of the shoe and towel near the body
becomes suspicious. How did items connected
with the crime end up on the ground near the
opposite
bank from which the body was deposited?
Furthermore,
crime scene photos show crucial pieces of evidence changing position: two pictures show
the fireplace in Derek's room with different items in it, in one picture, the window
screen in Derek's room is in the window, while in another, it is leaning against the
house, a garbage can mysteriously appears in one picture that was missing in another.
|
The
Commonwealth consistently talks about overwhelming evidence against Derek, but, as has
been demonstrated, the evidence is decidedly untrustworthy and insubstantial.
In trusting Virginia's criminal justice system to
find the truth, Derek made the same mistake he did in trusting the fraternity brothers
tell the truth.
CONCLUSION
There
is a simple solution that can put all doubt to rest.
Derek has requested time and again that the physical evidence which still
exists be released for modern DNA testing.
Indeed,
two of the jurors who convicted Derek swore out affidavits stating that they believed
further DNA testing should be performed.
It
would not cost the Commonwealth of Virginia a penny because people who believe in Derek's
innocence have donated money to perform the testing.
It is evident from a review of the facts that much testing was left undone,
the crucial testing that could have eliminated Derek as a suspect was forbidden, and much
physical evidence was never looked for or obtained.
Nevertheless,
vaginal swabs, nail clippings, fibers and hairs, if subjected to state-of-the-art testing
unavailable at the time of trial, will finally allow the victim to identify her killer.
The national political tide is turning in favor of permitting mandatory DNA testing of
evidence that could exonerate death row convicts.
The
Daily Press in Virginia wrote this about Derek's plight, "In the name of justice,
Virginia must be willing to risk the discovery that we have erred. That possibility, past and future, drives much of
the doubt about the death penalty today.
Any
honest defender of the death penalty should want to put that doubt to rest."
Even conservatives and death penalty supporters
such as George Will, Pat Robertson, and Governor George Ryan of Illinois have called for a
moratorium on executions until DNA testing and other assurances of accuracy can be
implemented. Senator Patrick Leahy has
introduced a bill in the United States Senate that would federally guarantee death row
convicts access to DNA testing for exculpatory evidence.
However, even if passed, that bill would not be enacted before the date in
September that the Commonwealth has requested for his execution.
It is unconscionable to imagine that an innocent
man could be executed a few weeks before Congress enacted a bill allowing him to
demonstrate his innocence.
If Derek is not the killer, as he has always maintained, then Sarah's killer remains at
large. There is no justice in this
tragic situation for Derek, his family, Sarah, or her family.
Many people remain diligently committed to
demonstrating Derek's innocence and ending the unspeakable injustice of putting an
innocent man to death. |
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