September 13, 2000
FOR IMMEDIATE RELEASE
DNA TEST IN BARNABEI CASE WAS NOT PROOF OF GUILT
Contact: Amy Levine (202) 662-5674
|
On Monday of this week, Governor Gilmore's office issued a
press release announcing the results of a DNA test of evidence in the Derek Barnabei case.
The Governor's office said that "the new DNA tests reveal that Ms. Wisnosky's
fingernails contained her own DNA and the DNA of one other person…Derek Rocco
Barnabei."
The Governor continued, "This DNA test result confirms that
Derek Rocco Barnabei is guilty."
These statements were misleading What the Governor's
office failed to tell you, and what we learned only yesterday, was that there were two
tests. The first test was run on bloodstained fingernails. These fingernails,
from Ms. Wisnosky's left hand, contained only her DNA. There is nothing in that test
that suggests guilt on Barnabei's part.
The second test was from the victim's right fingernails, and
that test showed the presence of Barnabei's DNA. But the fingernails on Ms.
Wisnosky's right hand were not bloodstained. In fact, a July 9, 1994 report from the
Division of Forensic Science revealed blood only on the left hand. Because the DNA
came from some source other than blood, it has no bearing on Barnabei's guilt or
innocence. They were a couple, and were admittedly in an intimate relationship.
The presence of a few skin cells or hair follicles is meaningless.
Everyone who follows this case knew about the bloody fingernail,
and we expected to find the killer's blood there. It turns out that was a blind
alley. But the Governor's statement that Barnabei's DNA was found on "Ms.
Wisnosky's fingernails" was an attempt to lead the citizens of Virginia to think that
it was Barnabei's blood.
Even today, the Governor's office told at least one reporter
that Barnabei's blood was on the fingernails. When they were challenged, the
Governor's office later retracted that statement and said they would have to get more
information.
These are not minor details. A man's life is at stake.
The people of Virginia deserve better than half-truths and blatant falsehoods from
the Governor's office in a death penalty case. Whether these misleading statements
were intentional or not is not the point. The point is that this matter involves the
taking of a human life. The government must tell the truth, the whole truth, and
nothing but the truth.
The fact is that the new tests shed no new light on the events
of September 21 and 22, 1993. But there is more evidence that could do so.
We call on Governor Gilmore to test the other evidence in the
Barnabei case and to stay the execution until all of the evidence can be tested. |
Top of Page
For Immediate Release – September 8, 2000
|
From: Seth
A. Tucker
Covington & Burling
(202) 662-5101
Linda C. Goldstein
Covington &
Burling
(212) 841-1059
Late today Governor James S. Gilmore III ordered testing of DNA
evidence in the Derek Barnabei case. Gilmore
ordered that the victim’s bloodstained fingernail clippings be tested. Barnabei has sought this testing since 1997 in an
effort to prove that he is innocent of the murder of Sarah Wisnosky.
The Governor ordered the test hours after Barnabei’s
lawyers filed suit in Federal court. The
lawsuit asks the court either to rule that the evidence that disappeared from a locked
evidence room and mysteriously reappeared days later in another locked room was still
intact and able to be tested, or to bar the Commonwealth of Virginia from executing
Barnabei because of malicious interference with his constitutional rights. Barnabei’s lawyers allege that all of the
evidence points to deliberate evidence-tampering by one or more government employees.
On learning of the Governor’s decision to order the test,
Barnabei said, “This is fantastic news. I’m
still very concerned because some of the evidence, including the fingernails, may have
been tampered with. Also there were over a
dozen items that we asked be tested, and the fingernails are only one of those. But the fingernails are critical evidence and I
expect the DNA test to save my life.”
Barnabei’s lawyers said that the new development does not
change their strategy. “The fingernails
are important, but they are not the whole story. We
still need to know what happened when the evidence disappeared,” said Seth Tucker of
Covington & Burling. Barnabei’s
lawyers said they would continue their court fight to learn the facts of the “lost
and found” evidence. They also vowed to
press to stay Barnabei’s execution. “With
all that has happened in the last week, we are calling on Governor Gilmore to order a stay
of execution. Derek Barnabei and the people
of Virginia deserve a full explanation, not a rush to judgment,” said Linda
Goldstein, also of Covington & Burling. |
Top of Page
For Immediate Release – August 31, 2000
|
From: Seth
A. Tucker
Covington & Burling
(202) 662-5101
Re:
Derek Rocco Barnabei
Today Governor James Gilmore's office announced that
evidence in the Barnabei case may have been "lost or compromised." The Governor's office insinuates that the defense
may be responsible for tampering with evidence. Finally,
the Governor concludes with the statement that the Virginia State Police are investigating
the circumstances under which any evidence may have been compromised.
The Governor's press release is at best reckless, and at
worst intentionally misleading. It raises
questions concerning whether the Governor's office is more interested in smearing Mr.
Barnabei and his defense team than in learning the truth about Sarah Wisnosky's death. This release should not distract our attention
from the central issue before the Governor: Will
Virginia test the DNA evidence? If not, what
is Virginia trying to hide?
The truth:
1. Barnabei's investigator reports that he has never
been alone in the evidence room. I am told
that this has been confirmed by the Circuit Court. The
investigator, who had not been in the evidence room at all between 1998 and August 2000,
went to the Circuit Court this month on a few occasions to photograph evidence. The defense has been reduced to photographing
evidence because the Commonwealth refuses to release evidence to us for examination. In fact, the Commonwealth even refused to provide
the defense team with photo-quality copies of crime-scene photos that were introduced at
trial. This has hampered our efforts to
investigate the murder and required us to rely on poor-quality photos of photos. If the Commonwealth will not even give us copies
of photos, is it credible to suggest that they would permit the press or the defense to
tamper with hard evidence? More importantly, Barnabei's
investigator was accompanied at all times by court personnel. Circuit Court clerk's office personnel accompanied
Barnabei's investigator whenever he was in the presence of evidence from this case. It is premature and reckless of the Governor's
office to level an accusation against Barnabei's investigator when further investigation
would have demonstrated that it is impossible for him to have compromised evidence in this
case.
2. The Commonwealth has never released to the
defense the numerous items of genetic material that we have requested. In June the Attorney General's office wrote to the
defense saying that the Division of Forensic Science had returned "all" of the
genetic material that we want tested "to the submitting agency" (presumably the
Norfolk police, although that was not specified). If
the genetic materials are missing now, two months later – and we should add that the
Governor's office has not indicated which items are missing or compromised –
then the real story is why has Virginia lost crucial evidence that could prove that it is
about to execute an innocent man? If Virginia
has lost that evidence, it would be immoral to proceed with the execution of Derek
Barnabei.
3. Barnabei and his defense team not only welcome but
demand a full investigation of the circumstances under which any evidence in this case has
been lost or compromised, and we demand that those responsible be identified and brought
to justice.
4. In light of these new developments and the fact
that the Virginia State Police are now beginning an investigation that could establish
that government officials have lost or compromised evidence in the Barnabei case, we
insist that Governor Gilmore suspend the execution of Derek Barnabei, now scheduled for
September 14, in order for that investigation to be completed. It is unthinkable that Virginia would proceed with
the execution when it is possible that government officials – the only people who
have access to the evidence – may have lost or destroyed evidence in the case. The current execution date does not provide
sufficient time for a full investigation and for serious and responsible review of that
investigation. |
Top of Page
Final Hours
Covington partner Seth Tucker
puts everything on the line as his client nears execution
|
Jake Richardson
Legal Times
September 20, 2000
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. |
Top of Page
Back to Latest News
|