In Barnabei's case, however, the quandary he’s facing is with old evidence he wants to enter – the state has no law that guarantees post-conviction DNA testing, even if it could free you. "There’s a myriad of issues that arise and it all leads to the same conclusion -- there is a problem with the system," says Del. Jerrauld C. Jones, D-Norfolk, adding that he could be in favor of capital punishment were it not for the process. In June, Jones called it a "moral imperative" when he asked Gilmore to declare a death penalty moratorium. Gilmore refused. "That’s the path of least resistance to him. The worst possible accusation you can make to someone in political office is that you’re soft on crime. If you don’t do anything but throw the switch, you’re soft on crime. That can be the kiss of death." The problem is, Barnabei may -- or may not -- be innocent. His case is problematic enough without the DNA issue. Many unanswered questions remain about how police determined he was the killer. The lack of evidence and conflicting testimony cast serious doubt about his guilt. A review of court documents, forensic reports and evidence logs indicate that, at the very least, he hadn’t been working alone. But to date, prosecutors and police have steadfastly refused to address these discrepancies. In other words, a typical capital punishment case. The DNA test could offer stronger evidence either way. Gilmore, until recently, had given every indication that it wouldn’t matter. Barnabei was convicted by a jury of his peers. He used all of his appeals. That, in the eyes of the state, constitutes fair. It’s apparent theft was a break. Others aren’t so lucky. You might know some of them. Roger Coleman. Joseph O’Dell III. Dennis Stockton. Convicted killers, yes, but men whose guilt was questionable when they died. Coleman, for instance, was executed in 1992, although post-trial evidence could have proved his innocence. He wasn’t allowed to enter it because of the 21-day rule. O’Dell was executed for murder, rape and sodomy in 1997; DNA evidence suggested otherwise. Barnabei may be just the judicial flavor of the month for death penalty opponents, but he symbolizes the state’s attitude toward DNA testing. Use it to put crime behind bars. Ignore it if it might help the defendant prove his innocence. And so, in a Sussex County maximum-security prison, Barnabei awaits his death. Eight layers of judicial review were given to Barnabei - from the Norfolk jury that heard the case to the Supreme Court - and he's exhausted every one of them, the clock ticking against him as he passed through one more legal proceeding on his way to the death chamber. All that’s left are the details. Lethal injection or electrocution? What will be his last meal? Final words, if any? Much like the remainder of Barnabei’s life, the recent past that sent him comes down to other small details. Sarah Wisnosky, 17, is dead. Barnabei, 33, was convicted of her rape and murder. That much, at least, is certain. On Sept. 22, 1993, 6:03 p.m., a jogger reported what she thought was a mannequin floating near a bulkhead on Knitting Mill Creek in the 5000 block of Norfolk’s Mayflower Ave. The figure was indeed lifeless. But it wasn’t a mannequin. The Old Dominion University freshman, just two weeks shy of her 18th birthday, was found strangled, beaten, nude. She had been hit in the head with a blunt object, eight, maybe 10 times. The victim’s size seven shoe was discovered nearby. Her high school class ring with the initials "SJW" pointed police to ODU. Eventually, it led them to 824 W. 48th Street and a house shared by four males - Michael Bain, David Wirth, Troy Manglicmot and Justin Dewall -- and someone who just moved in from Somers Point, NJ. Barnabei. There, investigators found Wisnosky’s other shoe, lying in the threshold of the back door. In Barnabei’s room, there was other evidence. Minute blood splatters on the wall. A bed stripped of its linens, covered only by a yellow blanket. No clothes in his closet. And no Barnabei. He became their prime suspect. Three months later, he was arrested in Cuyahoga Falls, OH, living under an assumed name, working as a waiter and sharing an apartment with a 23-year-old female co-worker who wanted to marry him. Norfolk detectives theorized that after Barnabei raped and killed Wisnosky, he panicked. He carried her body out of his bedroom window, put her in the trunk of his Chevrolet Caprice and sped away, stopping by Knitting Mill Creek to dump her body before leaving town. Up until his arrest, he looked guilty. But when the FBI checked Barnabei’s car for traces of Wisnosky’s DNA, the result was something unexpected. It came up clean. No blood. No hair. No fibers. Nothing. There was no physical trace of Wisnosky ever being in the car. Was Barnabei the real killer? Nothing in Barnabei’s past would seem to suggest so. His arrest record shows a small-time hustler with a penchant for grifting and run-ins with the law, mostly for a litany of traffic violations as well as fraud, forgery and writing bad checks. In December 1989, he tried to hit an officer while in the processing area of the local police department. In 1990, his license was suspended for driving while intoxicated. And in 1993, when he came to ODU from New Jersey, he was on the run for fraud. He took money for a construction job – then never completed the work. But he has no documented history of violence. By most accounts, he was a player who dressed in Dockers and Polo, in bars he flashed money and ran up huge tabs, called himself "Serf" and claimed he was a Rutgers grad who belonged to that school's Tau Kappa Epsilon fraternity. T.J. Rovira waited tables with Barnabei at Virginia Beach hot spot Le Chambord and remembers partying with him. "I was bar-hopping at the Oceanfront one night and he was all about hounding the girls -- a guido," says Rovira, 35, who claims Barnabei stole $450 from his Jeep. "Derek is somebody that everybody knows," adds attorney Andrew Sebok, who handled Barnabei’s direct appeal and also represented O’Dell. "He’s a schmoozer, a womanizer, so when he showed up at ODU, I don’t think too many guys cared for him." Sebok soon came to be one of them. Barnabei, he describes, was a "liar" who became so manipulative that it became difficult "taking his calls." "The single worst part of it was his running away," Sebok concedes. "There’s a dead girl. He’s living with another girl. What would your conclusion be? He’s guilty. That’s the sad truth of it." To the police or a jury, he was a likely suspect. "It’s when you get down to the nuts and bolts of [the case] that you say something’s wrong," Sebok continues. "That gets lost in how much we don't like this guy." Father Jim Gallagher Jr. has been working prisons for a decade, offering death row inmates a means to meet the Prince of Peace before they rest in peace. He will tell you he's seen some hardened criminals in this place, men whose offenses to humanity are so egregious that all he can do, really, is prepare them to meet their maker, above or below. He's seen one sent there courtesy of 'Ol Sparky, too. "I wanted to faint," he remembers from watching Eddie Fitzgerald electrocuted in July 1992. When it's Barnabei's turn, Gallagher will be with him literally every step of the way -- and praying for a last-minute phone call from Gilmore. "I don't think that he did it," feels Gallagher, 48, who has been counseling Barnabei for two years. "I don't think he could commit a crime like that." Someone else thinks so, too, but no one seems to be listening. After the basic pleasantries have been exchanged, one of the first things Virginia Beach private investigator Frank Slaton will tell you up front is he doesn't particularly trust reporters or like doing interviews. That's because few want to hear his opinion on what he thinks really happened that night. The media has largely ignored him. Past Barnabei lawyers have rebuffed him. Former Commonwealth's Attorney Chuck Griffith has tried to discredit him. And you can’t blame them, either. A beefy man of 39, Slaton takes his coffee black, cowboy killers by the pack, his political correctness with a grain of salt and his softball and job seriously. Mundane stuff, really. Background checks, pre-employment screenings and the like are his bread and butter. But he’s never worked a homicide. "They think I'm just some Joe who took a 60-hour class who's in over his head," says Slaton about his detractors. There’s more than meets the eye, though. His investigative background comes from the Army, where, during the Cold War, he briefed Hungarian defectors to assess if the information they provided was deception or of intelligence valuable to the U.S. He's skilled in the art of deception. So in August 1995, as Slaton watched telecasts of Barnabei's emotional breakdown after receiving his death sentence, that experience and something, maybe gut instinct, told him these weren’t the actions of a killer. Of course, he would need more than that. With Barnabei’s permission, he was given all available police files related to the case -- crime scene photos, forensic reports, evidence logs. Everything. He then visited and took aerial photos of the crime scene, interviewed witnesses, talked to forensic experts and made flow charts of evidence. The facts when put together, he says, were startling, if true. "The real killers are out there," asserts Slaton, his voice firm with conviction. "Derek did not kill this girl. They got the wrong man." Case in point: Barnabei’s Chevrolet Caprice. If Wisnosky wasn’t in his car, how was she transported to the Lafayette River? Another car, perhaps? Not according to his roommates' testimony. "It would have had to been one of the other roommates' cars," Slaton speculates. "There were many indicators that, at the least, Derek had an accomplice." Again, testing the blood and fingernail clippings would've offered more definitive proof of Barnabei's involvement. Again, police elected not to test. Instead, they relied on the car results being positive. "When Barnabei’s car came back negative, there had to be a meeting," Slaton speculates. He takes a drag of his smoke and blows out a funnel of North Carolina nicotine. Then, like a chaser, takes a swig of petroleum-colored coffee -- his third cup this morning. "Detectives at that point must have realized [there was] a problem. How could Barnabei alone put her in that car -- lift a 90-pound body that's lifeless and oozing blood -- and not get it all over the place?" It would be impossible, contends Walter F. Rowe, a George Washington University forensic science professor whose first experiences with DNA testing came investigating Dr. Jeffrey MacDonald in the 1970s, and in 1993, freeing a Maryland man named Kirk Bloodsworth after a nine-year jail stay for murder. Rowe will tell you that DNA does not lie. Unlike a witness, it won't change its testimony over time. And it doesn’t disappear. That makes the test results on Barnabei’s car a crucial piece of evidence -- the victim simply wasn't there. "The track record of people cleaning things up to the point where blood is not detected is not very good," Rowe says. Either Barnabei had help or "he really didn't do it. He's completely innocent." Rowe surmises that the only way Barnabei could have placed Wisnosky in his trunk cleanly would have been to "carefully" wrap her up. But her body was found nude. And it's unlikely a panic-stricken killer would take the time to wrap -- then unwrap -- the body before dumping it. "It's not terribly plausible. I would say [police] made a major goof here." But by the time authorities got back results, they were in too deep. Some five months had elapsed. They were committed to Barnabei as a suspect. "That’s where the breakdown started," says Slaton, who has since become part of Barnabei’s Washington, D.C.-based legal team. "The self-preservation sets in. The fact is, the police did very little investigation in this case. They never tried to identify anyone else. They assumed Barnabei was guilty from the beginning." And they locked into, based on the testimony of Barnabei's roommates, a version of what happened that night they never would break away from. Tuesday, Sept. 21, 1993. The 48th Street house. The night of Wisnosky's murder. Barnabei, his roommates, Wisnosky and a few friends were watching a movie. ingle White Female. The Italian-American Barnabei was 27. The Lynchburg-bred Wisnosky was 17. She came from a strict home and divorced parents, a young girl trying to fit in. They had hooked up two weeks ago, shared pot, shared themselves. She slept over, but they weren't serious. Barnabei brought other women over, even with Wisnosky asleep in the house. Wisnosky, according to court papers, when asked about her relationship with Barnabei once said, "He is all right, but I have had better." That night, they would have sex one more time. But would it be consensual, as Barnabei claims? Or, rape that would lead to murder? The roommates never claimed to actually see Barnabei murder Wisnosky. Because of that, police never have officially stated her time of death. It's believed to have been between midnight-12:30 a.m. That's when Michael Bain -- who lived in the room directly above Barnabei's -- alleges he first heard loud music. He recognized the lyrics – it was Nine Inch Nail’s "Head Like a Hole." He stomped on the floor. The music didn't stop. Bain went downstairs and ran into another housemate, David Wirth. They pounded on Barnabei's door for about five minutes -- but there was no answer. They tried to open it -- only it was locked. Later, Troy Manglicmot, another occupant, said he was suddenly awakened when Barnabei rushed into his room. Barnabei wanted him to move his car. When he did, Barnabei "pulled out real fast." It's then that Barnabei is believed to have disposed of Wisnoksy's body. About 2:30 a.m., Justin Dewall, who also lived there, returned home. When he couldn't find his dog he went looking through the house. He knocked on Barnabei's door. When it opened, Dewall saw Barnabei "stark naked," his face "wide-eyed" and "open-mouthed." Around 7:30 a.m., Wirth was leaving the house when he found Barnabei asleep on the couch in the living room. He asked why he was sleeping there instead of his room. He says Barnabei replied: "It was a long, [expletive] story." But there's a big problem with their testimony -- Barnabei had an alibi. According to court transcripts, Barnabei had not one, but several witnesses who testified to him being elsewhere during that time as well as to a different sequence of events. TKE fraternity member Ross Firoved testified he was with Barnabei for most of the night. They first went to a pledge meeting, not far from Barnabei's house. But 10-15 minutes into it, Barnabei's unruly behavior got them kicked out. They ended up at the TKE fraternity house on 43rd Street, where some 20-30 people hung out on the front porch, drank beer and moved from room-to-room socializing. Around midnight, though, when Bain and Wirth testified Barnabei was playing loud music in his room, Firoved told then Commonwealth’s Attorney Chuck Griffith he was with him in the kitchen looking for food. GRIFFITH: Can you describe what was happening at his house when you got there in terms of whether there were other people around, what were the lighting conditions, was there a TV, radio, those types of things? What was going on when you got there? FIROVED: When we got there, nobody was awake. All the lights were off. The TV wasn't on. It was completely dark. All the doors were shut. Firoved never saw Wisnosky, but noted Barnabei's door was closed. A few minutes later, they returned to the party at the TKE house and Barnabei tried some pick-up lines. GRIFFITH: When you went back to the unofficial TKE house, would you estimate to the members of the jury how long you had been gone? FIROVED: Ten minutes tops. GRIFFITH: And when you returned to the unofficial TKE house on 43rd Street, were other people still present and about. FIROVED: Yes, there were. GRIFFITH: Where were they milling about at the time? FIROVED: Still on the front porch and throughout the first floor of the house. GRIFFITH: Were there any women present? FIROVED: Yes, there were. GRIFFITH: Did any activity take place between the defendent with respect to any of the women that were present at that party after you got back from his house a little after midnight? FIROVED: Yes. GRIFFITH: Relate for the members of the jury what that activity was that you observed. FIROVED: He was making sexual comments to the girls. GRIFFITH: Can you remember the substance? FIROVED: "Can we get together and go out and have a few drinks? Maybe you will come back to my house, stay the night?" Things like that. It was TKE member Jason Silverstein who kicked Barnabei out of the pledge meeting. He testified to seeing Barnabei at the party as late as 12:15 a.m. -- again, around the time his roommates said he was home. Roland Gee, a pledge, testified that he remembers Silverstein kicking Barnabei out. When Gee left the party between 12:30-1 a.m., he gave Barnabei a ride home. Gee came inside, watched TV -- and saw Wisnosky. Alive. GRIFFITH: Do you remember how long you stayed there before you left? GEE: About 45 minutes. GRIFFITH: These times that you have been giving to the jury during your testimony here today, are these estimates? GEE: Yes. GRIFFITH: During the evening before and the early morning hours that you're talking about right now, did you have some sort of a note pad or a log or something that you were going down and looking at your watch and writing down the various times when things occurred? GEE: No. GRIFFITH: You're simply trying to make your best estimate today based on what you remember back then? GEE: Yes. GRIFFITH: Before you left the defendant's house in the early morning hours of that day, did you go into his bedroom? GEE: Yes. GRIFFITH: And when you went in his bedroom, was there anybody besides you and the defendant? GEE: Yes. GRIFFITH: Who? GEE: Sarah. GRIFFITH: Was she alive? GEE: Yes. GRIFFITH: What was she doing? GEE: Just smoking a cigarette on the bed. Gee stayed in the bedroom, listened to the radio with Barnabei and Wisnosky for almost 30 minutes and left "close to 2 a.m." Some time later, Barnabei left to score some pot. That was the last time he would see her alive. Hours later when he came back, he saw Bain balling up bedsheets. The pledges, Barnabei claims Bain told him, broke into his room and fired paint balls. He was cleaning up. Wisnosky was gone. But Barnabei didn't question it. It wasn't unusual for Wisnosky to come and go. Barnabei left for Rogers Hall, a dormitory a street away, to get back at the pledges. At 7 a.m., his bed stripped clean of linen, covered only by a yellow blanket, Barnabei goes to sleep on the couch. "Somebody's lying," Slaton says. "They got away with that. [The jury] never picked it up. The timeline established by the Commonwealth can't be accurate. The Commonwealth has never had to answer why she was killed during this music." Barnabei's actions later that day didn’t suggest a person wanting to hide. Silverstein said Barnabei called him at 1 p.m. to talk fraternity business and tell him he was going out of town. Fraternity member Jeff Baldwin testified that Barnabei took him to work downtown between 5:30-6 p.m. -- around the very time the body was being recovered. "The reason the body was dumped was to conceal the crime," Slaton theroizes, "not from the police -- but from Derek." Police recovered Wisnosky's naked body floating in Knitting Mill Creek, near a bulkhead on Mayflower Avenue, where they estimated it had remained stationery for 12-15 hours. She was found naked, her clothes never recovered. A class ring revealed her identity. A watch hinted at her time of death. And marks were on her that needed explanation. According to the autopsy of pathologist Faruk B. Presswalla, the body looked it like had been "dragging against vegetation . . . like sticks." But there was only grass around the bulkhead. Ditto for Barnabei's house. Mayflower Avenue, too, would have been a weird place to dump a body. It's a quiet street, the kind of neighborhood where outsiders easily attract attention. The bulkhead area is well lit and in full view of neighbors. And what about the tide? "It would've moved [the body]," contends Ron Johnson, an ODU oceanography professor who's studied that area extensively and lives within miles of the crime scene. That area of the creek, he says, is very susceptible to current and wind. The deserted land on the other side of the creek, though, was overrun with the type of vegetation that could have caused Wisnosky's marks. There were no street lights and only one house that, back then, was vacant. But was the current capable of carrying her to the other side? "It definitely is possible. It could've easily drifted that far and stayed there for several cycles," believes Johnson, noting her time in the water (12-15 hours) would be how long it would take a floating object to cross from there to the bulkhead. At face value, it's almost irrelevant. But that area contained an overlooked element important to the investigation. Sand. Outside Barnabei's house, a pair of socks and shoes were discovered, according to crime scene photos. The socks were in a trash can on top of other garbage. The shoes were on the ground. The socks had sand and debris similar to the type found in the deserted area. Just as important: They contained four pubic hairs. A hair and fiber analysis expert determined they were Wisnosky's. That meant the wearer of the socks came into direct contact with Wisnosky when they disposed her, apparently from dragging her nude and face down. The socks were a size 8 1/2-9. Wisnosky wore a seven, Barnabei a 10 1/2. But: Police never determined who wore them. "These items are very crucial to the whole case," Slaton argues. "It had to be the person who disposed of the body." Police never determined who owned the shoes, either – and there’s no record of them ever being logged into evidence. Additionally, police photos show other clothing amidst the garbage – but there’s no record of them as well. No traces of Wisnosky's blood were reported to have been found outside Barnabei's first floor window leading up to the driveway. Inside, police searched Barnabei's room and found stains on his waterbed, walls and beneath his carpet. But there is no record that police even searched or took DNA samples from other rooms of the house. The roommates’ cars were also not searched for traces of Wisnosky's DNA. "It doesn't make sense," continues Slaton, his voice rising. "It shows just how incomplete their investigation was. It's not what the police did -- it's what they didn't do. It's the absence of the evidence -- not the amount. They never opted to use it to see if it eliminated Barnabei and incriminated someone else." In total, detectives collected 54 pieces of physical evidence for testing inside the house. Of those, 12 were submitted for testing only to be pulled. Among them: stains from Barnabei's waterbed, a wash cloth, towel, and, of course, blood from Wisnosky's fingernail clippings. "Police had the evidence that if Barnabei had committed this crime, they could have incriminated him beyond a reasonable doubt," Slaton explains. "They didn’t try to solve the crime, they tried to implicate Barnabei. Once [what they had] identified Barnabei, they left it at that. What didn’t fit their scenario was conveniently dispelled. There appears to be a pattern here that suggests they could have intentionally convicted an innocent man." In Norfolk, it wouldn't have been the first time. The early 1990s was a tough time for the homicide squad, according to a Virginian-Pilot investigation at the time. Eleven supervisors came and went. Detectives were overworked. And the number of homicides during 1992 and 1993 were the worst ever. It was during this time that a pattern had developed among detectives. They arrested people on shaky evidence, then dismissed murder charges when a stronger suspect emerged. In at least seven murder trials, suppressed evidence was uncovered changing their outcomes. Why, then, would the Barnabei case be any different? Sebok, Barnabei’s former attorney, doesn’t think so. "There are certain elements that make no sense no matter how you slice it. I’ll be honest with you. He’s a piece of garbage. If Derek didn’t do this, he didn’t do it by himself. But the investigation has been done in such a manner there’s no way to tell." In the end, only four pieces of evidence were used to incriminate him. None would directly relate him to the crime: The presence of his semen inside Wisnosky. Her blood splattered in his room. A surfboard with minute traces of Wisnosky’s blood that had been in Barnabei's room; he was seen with it outside of the house after the crime. And the socks in the trash can. Barnabei's lawyer James O. Broccoletti argued at the June 1995 trial that the presence of semen wasn't unique; they had been dating. The sex was consensual. And all the blood did was establish the crime's location -- not Barnabei as the murderer. Broccoletti, a respected defense attorney who's represented 30-plus clients with lives in the balance, made the rape a key point in his defense. He challenged prosecutors to prove it. If they couldn't, Barnabei couldn't be convicted of capital murder. The Fourth Circuit found his representation ineffective -- that is, it was judged below the minimum standard granted by the Constitution. Nevertheless, the court ruled it didn't matter; there was enough evidence against Barnabei that established him as the killer. Broccoletti, 47, appears hurt when asked about it. "No one can understand what it's like to wake up in the middle of the night, sit straight up in bed, and wonder what's going to happen tomorrow, to have this incredible and awesome responsibility of having a man's life in his own hands. And then, if he's convicted, the first thing he's going to say is that you're ineffective." It's unclear how the jury overlooked the importance of Barnabei's car not having any trace of Wisnosky's DNA or the conflicting testimony concerning his whereabouts that night. And just when you thought that nothing else could possibly happen in this case, two weeks ago something did. Remember that DNA Barnabei wants tested? It was missing. Barnabei’s attorneys have been working diligently to convince Gov. Jim Gilmore to permit the DNA testing. The governor seemed unconvinced. Two weeks ago, Gilmore changed his mind. He sent state police to Norfolk Circuit Court to obtain it where a startling discovery was made. Evidence had left the building. Specifically, the envelope that contained it. Chaos erupted. Fingers were pointed. Most of them fell on one man – Slaton. The very next day, while he readied himself for a visit from state police, the envelope just as inexplicably, showed up. It was, authorities allowed, misplaced, found in an adjacent evidence room. "It being separated means that it had to have been done intentionally," Slaton feels. "The Commonwealth is worried that it's going to show somebody else -- and it's not Derek." Even if Slaton had removed it, he wouldn’t have access to another padlocked evidence area -- much less while being escorted by court employees. Through press secretary Mark Miner, Gilmore said he wouldn’t decide whether to order new tests until after the state police investigation is completed. Other than Slaton, the only known outsiders that visited the evidence room was a Nightline camera crew. Norfolk Clerk of Court Albert Teich Jr. can’t explain what happened. State police won’t comment on their investigation. And Gilmore, in an interview with Ted Koppel, didn't blame Nightline -- but implied Slaton’s guilt. Gilmore, who wouldn't respond to repeated requests for an interview, said in a statement: "I am advised that this same investigator, who had been appointed by the U.S. District Court to assist Barnabei’s attorneys, was removed from the case by the judge based on the investigator’s misconduct and misrepresentations." "I was never removed from the case," Slaton asserts. Nevertheless, in May 1998 two of Barnabei’s roommates – Bain and Manglicmot – filed a complaint that Slaton misled them to believe he was a court official and intimidated them into answering questions. The Department of Criminal Justice investigated the allegations. At his hearing, though, it was Griffith, the Commonwealth's attorney, that testified to the investigator's actions -- not Bain or Manglicmot -- while, strangely, Slaton says he was sequestered during his testimony. In June 1998, a Richmond federal judge ruled to withdraw the federal funding Slaton was getting for his investigation. That meant he wouldn’t be able to bill the government for his work anymore. The whole incident has always stung Slaton, who still denies the allegations. Instead, he sees the incident, and what's happening today, as deliberate attempts to prevent him from getting too close to the truth. "He was an irritant [to them]," remembers Sebok, Barnabei's former attorney. "He stoked the flames of the factual fires." And he was ready to burn somebody. "I was on a roll," Slaton believes. "[The allegations] essentially stopped me from going after these guys. I was going to make it happen." Even before this happened, Slaton had mentioned in recent weeks about other Barnabei evidence coming and going. On one visit, three never-seen-before videotapes shot by a local TV news crew of police's retrieval of Wisnosky’s body, appeared. (They had been locked in the office of Judge William F. Rutherford, who presided over Barnabei’s trial.) On another, Slaton discovered that the hammer used by the prosecution at trial to represent the murder weapon -- in lieu of the real murder weapon, which was never found -- was missing. On two occasions, boxes of evidence were out in the open. (Slaton says he didn’t see anyone around who might have been reviewing them). Each time, he was escorted by a court employee, an account Teich confirms. "What logical common sense reason would I have to take these items?" he asks. Slaton had to fight back tears when he first heard of Gilmore’s decision to test the DNA. Now that the results are in, he’s fighting back anger. "Until I see the results, I don’t have any comment. The events leading up to the test . . . I have more questions than answers. The whole situation . . . it’s more confusing than before. I’m not placing any validity in the results because of that testing." Or, in this case, lack of. While one man's life depends on the test happening, so, too, does another's. "I've got to know," says Slaton with part conviction, part uncertainty about Barnabei's innocence. Five years ago, that's when it started. Slaton saw a wrong he thought needed to be righted, dove in, and was drowned by the enormity of it all, with nothing but few facts and faith to keep him afloat. A lot has happened since and it hasn't been life. He's put everything on hold, from doing the investigative work he actually gets paid for to cutting his grass and taking vacations. When he's awake, he thinks about the pictures that show Wisnoksy's beaten, bruised body and replays in his head the events he thinks led to her death. When he sleeps, if he sleeps, sometimes those things give him nightmares. Five years of it has him emotionally redlining. He needs to know it counted for something. "I've done everything I can to keep this guy's story alive. I'm tired," he says wearily. "This is burning me out. I've got to know. I've got to know if the effort I've put into this isn't for nothing. If he did it, so be it. But they didn't prove it." The police won't defend that. But they won't deny it, either. A spokesman says the department won't allow an interview with any of the detectives involved much less discuss the case. "We've never done that," he says. The Commonwealth Attorney’s office has nothing to say, either. Griffith, the prosecutor, is now a Circuit Court judge and therefore, immune to questioning; ethical rules forbid judges from commenting on cases. In early July, Assistant Commonwealth’s Attorney Valerie Bowen, at first, agreed to comment. She returned a message and said to give her a call. We did. For weeks. She never called us back. Attorney General Mark L. Earley figures prominently in Barnabei’s plight. Earley spokesman David Botkins said he wanted to be as "accomodating as possible" in arranging an interview. He wanted to know our intentions. He wanted to know our questions. He wanted to know our sources. In the end he refused to let us talk to Earley. Two of Barnabei's roommates are also keeping their distance. Before Bain left town, he traded in his late model Ford Taurus and eventually it was sold to an Isle of Wight man. Slaton, with the owner's permission, got it tested for Wisnosky's DNA. The car was clean. We found Bain living in Phoenix, where we left a message but no number. He called us five minutes later. "I really don't want to comment on it. I don't see a need to get in the middle of it." His roommate, Wirth, lives in Janesville, WI, about an hour outside of Chicago in suburban Americana. His house, strangely, is the only one on the street with a fenced yard, according to Slaton. There are NO TRESPASSING SIGNS posted. The Confederate flag flies from a TV antennae. On his Ford Ranger is a bumper sticker that reads: MY PRESIDENT IS CHARLTON HESTON. In his garage sits the 1976 white Ford pick-up he had when he lived in the 48th Street house, and according to Department of Motor Vehicles records, is unregistered in Wisconsin, Illinois and Virginia. In April 1997, four years after the murder, Wirth, then living in Cook County, IL, threatened a neighbor, Francine Epps, with a 12-gage shotgun. Epps honked her horn for Wirth to move his truck so she could park her car. He did -- then went inside his home and came back out with his gun. He was found guilty of aggravated assault. On a Web site devoted to freeing Barnabei, he has been downright prolific, posting lengthy messages throughout some days concerning "several inaccuracies and outright lies" as well as defending his innocence. "I believe this Web site," he writes, "is a detriment to my character." He has also boasted about his right to carry a gun, defended the idea of capital punishment and called New Yorker Tony Di Piazza, the site's founder, a "stupid Yankee." When we asked for an interview, he wasn't as verbose. Wirth simply said: "No." He’s stopped posting messages. The small burg of Waverly is located west of Hampton Roads, the home of a few hundred hard-working, God-fearing souls, a Burger King, a diner and Sussex I State Prison. Thick woods that surround Sussex make escape on foot impossible. And behind its 10-foot high chain link fences lined with barbed wire, guard towers and electronic gates are the worst the state's penal system has to offer -- rapists and killers. A combination of the two gets you sent to Building 3. Death row. Welcome to the jungle. First, empty your pockets of everything. Yes, everything. Pen and paper is allowed - but that’s it. Here, take this quarter. We'll need it so we can put our stuff in this locker. Sign in here. Look. That door just buzzzed open. Ahead: a metal detector. Three guards wait on the other side. One guard pads you down. One takes your identification. The other just watches. Another door is buzzzed open. Outside, three officers, one armed with a shotgun, watch us as we pass. A reed-thin guard, wearing a badge, cap, dark sunglasses and the nametag SINNOTT will escort us through the myriad of chain-link gates and metallic doors one must pass through to get anywhere inside Sussex. One metal door. Then through another to a place simply called "SUPPORT ENTRANCE." A chain link electronic gate numbered "27." Here comes "25." And there it is -- Building 3 -- a big, ominous white structure. Sinnott has just walked up to, quite literally, death's door. He takes one last furtive drag of his smoke -- you wouldn't mind taking a pull yourself -- before he intercoms those on the inside that someone has come to see inmate No. 227108. Barnabei. We get buzzed in. Again. We face another thick metal door. Again. We must sign in. Again. Inside the interior chamber is what could be the set of Oz -- an open area with metal tables and chairs devoid, at the moment, of prisoners. Above and to the left is the control booth. Inside, a female guard sits behind a series of color monitors. Another guard whose muscles stretch the polyester of his uniform to capacity, paces in front of her, scanning the serene scene, armed with a shotgun loaded with rubber bullets and imposing silence. The cells are positioned about 25 yards directly ahead. Two guards have just been dispatched for Barnabei. By now, other inmates are peering from their cells, their faces hidden in shadow for the most part. A beam of florescent light catches a chin, a cheek, a nose -- just enough to let you know that people are living out their lives behind those dull, gray metallic doors. There are 28 of them. Twenty-eight takers of life. Twenty-eight receivers of death. There is James Reid in 4B39. At 54, he's the row's oldest inmate. James Atkins, 22, who resides in 4B09, is one of its youngest. Robin Lovitt, inmate No. 251062, is in 4B18. He stabbed a man six times with scissors for $200. Barnabei is on the second floor -- cell 4B42. He will be the sixth person sentenced to die this year -- 79 total -- the last being Russel Burket just two weeks ago. He's shuffling his way here when . . . "Any aggression at all," an officer whose body is a cinder block with a head attached named BAYLOR warns, "and this will be terminated." Baylor is referring to Barnabei's last visit from the outside. He got upset, started yelling and had to be restrained by the aged and seemingly no-nonsense Baylor -- and four other guards. Barnabei's arrived. Wearing a white tank top, shorts, sneakers, faded orange cap turned backwards, thick plastic eyeglasses -- and arm and leg shackles -- he arrives in a small meeting room that's off to the side of the control booth. Inside, there is a wooden table and plastic chairs. And a foul smell. Urine maybe. Barnabei smiles, offers a handcuffed hand, motions to the shackles and apologizes. The only time they can be removed is in the presence of his attorneys. Go figure. "It's a shock to say the least . . . this contemporary holocaust," he says. "You're watching men die around you." Some think you should be joining them. "There's no overwhelming evidence against me. They based it solely on character assassination. I had a bright future ahead of me . . . I was just like you. I had hopes and dreams . . . they took my whole life and turned it upside down. Even if I were to leave this prison, the taint on my life would still be there." You don't look so good, man. "I'm not holding up too well." He pauses. "I've seen things here . . . it's so surreal. I can't believe it's happening. In any other state I wouldn't be here. But I had to come to Virginia." Barnabei still maintains his innocence. He just wishes he hadn't acted guilty. En route to New Jersey, he claims Bain, his roommate, paged him. When Barnabei called, he alleges Bain said, "Don't come back" because Wisnoksy had been found dead and police were looking for him. "I'm thinking this was a prank," Barnabei remembers. His mom told him it wasn't -- then pleaded for him to turn himself into authorities. Barnabei, of course, did what's natural for someone who’s had trouble facing responsibility -- he ran. Here, now, he wishes he had a second chance. "I just went hysterical," Barnabei explains. "I wasn't thinking straight. It was a total meltdown. Looking back, I should have turned right around. It was a mistake." Now it may cost him his life. But life and eventual death are nothing new here. The men on the row share a bond, as only those can whose lives are in their twilight. Life is a mundane existence that blends from unrecognizable day to the next, punctuated by an endless routine of bright lights, whistles, screaming by guards and a world inmates can see from their cells, but will never be able to enjoy as free men again. At 6 a.m., it's time for Barnabei to get up. Flood lights pierce the cell. Outside, keys jangle, signaling the approach of guards. One bangs on his cell and says: "Stand for count inmate 227108 (Barnabei) or be charged." Lunch is noon. Guard shift change: 2 p.m. Dinner: 5 p.m. In-between: more routines. Every two hours inmates are counted. Two showers are allowed per week. The nightly arrival of the "witching hour" -- prison parlance for the shakedown by the tactical team -- a cadre of guards in riot gear whose raids come without warning, their entrance into a cell preceded by a disembodied, unified chanting "Left, right, left right. Who will be our victim tonight?" When all is quiet, some inmates extract the sugar from Skittles to make crude, but potent wine. Some work on their appeals. Barnabei spends his time reading law books and phoning attorneys. For exercise, he runs in place and does push-ups. For entertainment, he watches a six-inch black and white TV bought from the prison for $119. For escapism, he has a $23 carton of generic smokes. In a letter to Port Folio Weekly, Barnabei summed up the frustration of living on the row: Everything is a battle for us from receiving our mail to getting a shower. It seems nothing can be obtained without some sort of confrontation. That is to say, we have to beg and plead to get something as simple as a bar of soap . . . Couple this with what we already face (death) and you can easily see how this ordeal can become maddening. Those who know Barnabei privately say he's describing himself. He's not the same suave, self-confident, smooth-talker who entered the joint. Being here, locked in a confined cell for 23-hours a day and facing his own death, has changed him in a way, those closest to him believe, he doesn’t even realize. He's become beaten. Broken. His essence slipping away as his time draws near, forcing him to reach out to anyone, anywhere, who offer some hope of leaving this place. Slaton, who Barnabei calls a "brother," says: "Psychologically speaking, he's slowly digging shovels of dirt. It's the fact that he's going to die. He thinks he's the only person who can get him out of this thing." Media interviews with The Washington Post and others who just want a piece of Barbabei's time, nothing more, have generally been favorable. But as his case began to receive notoriety, and the Italian community here and abroad began to donate money, reportedly $200,000 for his legal fund, some wanted a cut. A Texas-based investigator named Richard Reyna heard about his plight, offered to help, was compensated -- but never turned up any leads. A Richmond investigator was paid, too, but it’s unclear if he ever advanced the case. With his TV appearances and speaking engagements, Chicago investigator Paul Ciolino is the profession’s Magnum, P.I. A case he worked on was one of the 13 cited by Illinois Gov. Ryan’s call for a moratorium. He pocketed $23,000 from Barnabei and, while on the job, took a vacation to Australia. He, too, never found anything substantial. "You look around here. You've got people of every race, color and creed. It's a war zone. I know these men. I talk to their families and the next day they're dead. It gets to you." The untested DNA is all he has left. But Virginia’s death row history has shown that isn’t always enough. Once Barnabei lost his trial, procedure overrides the search for justice. The automatic appeal. The habeus corpus appeal. The Fourth Circuit appeal. The Supreme Court appeal. Legal checkpoints, really. Nothing more. It's the process, how Virginia's system is set up -- despite cases like Barnabei's that demand a second look. It's done for fairness, to make sure every chance is given -- even though there is no legal mechanism for introducing post-conviction DNA evidence. It's the law; if you take a life, you may have to forfeit your own -- but it's not imposed on everyone. Either way, fair or not, innocent or guilty, if you're passing through, you wait here. Building 3. But this place, it seems, is just another checkpoint that really doesn't matter, a human weigh station for the next, and last, stop so the file can be officially closed. The death chamber. "I've lost everything. The core of my struggle centers around Sarah. The real killers are out there. You don't have to release me. I'm locked up. I'm not going anywhere. But let's find out what happened." A guard named WILSON walks in and motions to Barnabei. He doesn’t need to state the obvious. Time's up. Later, man. "OK, let ‘em out!" Wilson booms. The door buzzzes open to the outside. Some of the prisoners have been let outside for recreation. The sidewalk back to the main entrance splits the prison yard in half with killers on both sides, talking smack and shooting the rock. For a moment they stop. And look. Even though there is a 10-foot high chain link fence between us and them, you still can't help but feel vulnerable, like you're a piece of cheap chic walking on a sidewalk to them, must have the allure of a Paris runway. The inmates, mostly black, hoot, holler, whistle and call us "bitch" as we walk past. Barnabei is behind us, praying tomorrow will be the day he gets a reprieve. On the row, you see, there isn't always a tomorrow. It gets reduced from an infinite term to a finite number. You know when it ends. You can count how many you have left. By the time you finish reading this sentence, Barnabei may be out of his. |
