|
Lab's Errors Force Review of 150 Virginia DNA Cases
|
May 6, 2005
The New York Times
Saturday may 7th, page A1 Lab's Errors Force Review of 150 Virginia DNA
Cases By JAMES DAO WASHINGTON, May 6 - A sharply critical independent audit
found Friday that Virginia's nationally recognized central crime laboratory
had botched DNA tests in a leading capital murder case. The findings
prompted Gov. Mark Warner to order a review of the lab's handling of testing
in 150 other cases as well. Among the auditors' eight recommendations, all
of which were accepted by Mr. Warner, were that the governor restrict the
work of the lab's chief DNA scientist, Jeffrey Ban; review 40 cases that Mr.
Ban has handled in recent years, along with a sample totaling 110 additional
cases; and develop procedures to insulate the lab from any outside political
pressures. Experts said the findings could lead to a re-examination of
scores of past prosecutions, including those involving some of the nearly
two dozen inmates on Virginia's death row, and might also throw into turmoil
many current prosecutions in which the lab's work helped identify or rule
out suspects. "You have to have doubts about the reliability of any case
coming out of there," said Betty Layne DesPortes, a criminal defense lawyer
from Richmond who heads a legal panel for the American Academy of Forensic
Science. "How can we be sure that this case wasn't typical?" she said of the
handling of evidence in the prosecution of Earl Washington Jr. The governor
called for the independent audit of the lab last fall in response to the
case of Mr. Washington, a retarded man who came within days of execution for
a rape and killing before DNA evidence, though not resolving the case, did
raise doubts about his guilt. The audit's findings come at a time when DNA
is growing in importance in implicating and exonerating suspects. Forensic
labs in several states, including Oklahoma and Texas, have come under
intense scrutiny for their mishandling of that and other evidence. The
outside auditors, from the American Society of Crime Laboratory Directors,
found that the Virginia lab's internal review process was flawed. They also
raised concerns that lab workers had felt pressured by their superiors as
well as the office of Jim Gilmore, who was governor when a flawed test of
newly discovered DNA was conducted in 2000, to produce quick and conclusive
reports in the Washington case, even when the evidence was muddled.
"Pressures from outside the laboratory and excessive managerial influence
from within the laboratory," the report said, "had a detrimental effect on
the analyst's decisions, examinations and reports in this case." In an
interview, Mr. Gilmore, a death penalty supporter now in private law
practice, said that while he had "demanded all the proper evidence we could
get," he had never asked the lab to reach any particular conclusion.
Virginia has executed more people, 94, than any other state except Texas
since the Supreme Court allowed reinstatement of the death penalty 29 years
ago. Mr. Washington was initially sentenced to death for the 1982 rape and
fatal stabbing of Rebecca Williams, a 19-year-old mother from Culpepper,
Va., but the sentence was commuted by Gov. Douglas Wilder in 1994. He was
then pardoned by Mr. Gilmore in 2000 because of DNA evidence that raised
doubts about his guilt. But because of mistakes in the DNA tests by the
crime lab in 1993, his lawyers assert, he stayed on death row seven years
longer than necessary. And additional botched testing in 2000, they say, is
the reason he has never been fully exonerated. "This laboratory touts itself
as the best state lab in the country, yet it generated these wrong test
results in a capital case twice," said Peter Neufeld, a lawyer for Mr.
Washington who is co-director of the Innocence Project. "This case raises
very serious questions about the legitimacy of the capital justice system."
Mr. Washington, 45, is living in a home for the mentally retarded on
Virginia's Eastern Shore. When he was told Friday afternoon about the
audit's findings, he said he hoped he would now be officially declared
innocent in the Williams murder, Mr. Neufeld said. Mr. Ban, a nationally
recognized forensic scientist who has helped other states develop DNA
policies, trained many members of the Virginia lab's staff. As a result, the
auditors recommended that independent experts review tests by other analysts
there involving low levels of DNA - the type of evidence used in the
Williams case - to ensure that similar problems were not rampant at the lab.
The audit found an array of problems in the way Mr. Ban had conducted and
analyzed DNA tests in the Williams case. Those mistakes caused him to
conclude incorrectly that a convicted serial rapist named Kenneth Tinsley
was not the source of semen found in Ms. Williams, even though he had been
found to be the source of DNA on a blanket at the crime scene. But a test
commissioned by Mr. Washington's lawyers in 2004 pointed to Mr. Tinsley as
the likely sole source of the DNA found in Ms. Williams. Had the state lab
come to the same conclusion, Mr. Washington's lawyers claim, Mr. Tinsley
would have been prosecuted for the Williams murder years ago. He never has
been, though Mr. Neufeld said he was now imprisoned in an unrelated rape
case. The Virginia legislature enacted a law this year that makes the
Division of Forensic Science, which runs the central crime lab, an
independent state agency and creates an advisory board, made up in part by
division employees, to help oversee its work. But Mr. Neufeld said the
legislation did not go far enough because it did not create an entirely
independent office to review the lab's work. "The audit provides compelling
evidence that crime labs can't police themselves," Mr. Neufeld said. Paul B.
Ferrara, the director of the Division of Forensic Science, who in the past
refused to acknowledge any errors in the Washington case, declined to be
interviewed. But in a statement, he said the audit "belies the major body of
other work" by Mr. Ban that helped lead to Mr. Washington's pardon. Ms.
DesPortes, of the forensic science academy, criticized Mr. Ferrara for what
she described as his failure to shield Mr. Ban from "typical" political
pressure on crime labs. She said his response to the audit suggested that he
would not vigorously carry out its recommendations. "He seems to think a
perfect lab is one where errors never occur," she said. "But errors are
going to occur. A perfect system is one that is able to catch its mistakes,
and correct them." |
top
Mom's fight goes on for Barnabei
|
| Friday, Feb. 16, 2001
Effort to clear man's name is continuing
By David Chernicky
Daily Press
Etched in the granite on Derek Barnabei's gravestone are these words:
"The fight goes on."
The stone also includes the engraved image of a torch.
Jane Barnabei picked the phrase and symbol for her youngest son's grave outside
Philadelphia because they were among the last words he spoke to her. The state of Virginia
executed him five months ago for raping and murdering his girlfriend, Sarah J. Wisnosky,
in 1993.
Derek Barnabei proclaimed his innocence till the end.
Mrs. Barnabei recalled the last conversation with her son in the hours before he was
executed Sept. 14, 2000.
Derek Barnabei asked his mother to continue the fight to prove his innocence.
"Derek told me, 'Mom, you're an activist now,' " Mrs. Barnabei said. "I
will keep fighting to clear my son's name until the day I die," she said from her
home in Somer's Point, N.J.
Mrs. Barnabei recites a long list of what she calls "injustices" by the
police, prosecutors and Virginia Gov. Jim Gilmore.
She wonders why prosecutors did not submit other items from the fraternity house for
DNA testing, and refused to look at Barnabei's roommates as possible suspects.
The Barnabei family is still waiting for the state to explain how the victim's
fingernail clippings -- evidence that Barnabei's lawyers wanted tested for DNA --
disappeared from a Norfolk evidence room and reappeared a few days later.
The DNA tests on the clippings failed to help Barnabei.
"I think Virginia is using Derek as the scapegoat," Mrs. Barnabei said.
"A jury convicted him and the state executed him. Now the governor has to abide by
the decision."
The Barnabei family isn't alone in their belief that Virginia executed an innocent
man.
The questions raised by Barnabei and his attorneys have echoed across the world,
including the Vatican, the Italian government and other European countries opposed to the
death penalty.
Many of the letters from Italy's leaders appear on a Web site dedicated to Derek
Barnabei. The publicity has prompted some to launch a foundation to help others on death
row and raise awareness against capital punishment.
The Barnabeis mortgaged their small ranch house to help finance Derek's legal
expenses.
Derek Barnabei's father, Serafino, died of cancer about six months after the Norfolk
jury sentenced Barnabei to death.
New York real estate agent Tony DiPiazza, who emigrated from Sicily when he was young,
has offered a $50,000 reward for information that would clear Barnabei's name.
DiPiazza has not received any serious inquiries since he announced the reward last
year.
Mrs. Barnabei plans to travel to Italy later this month for the release of a book
about her son titled "I Am the Sea." An Italian reporter who once worked in New
York borrowed the title from a poem Derek wrote when he was 5. Mrs. Barnabei recalled the
poem and sobbed.
"He was funny. He was talented, intelligent. He could have had such a
future."
Wisnosky's family has made few comments to the media since the murder, and could not
be reached about the latest court ruling.
David Chernicky can be reached at 247-4743 or by e-mail at
dchernicky@dailypress.com
|
Diocese is denied Barnabei DNA
tests
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| Friday, Feb. 16, 2001
Judge won't hand over additional trial
evidence
By David Chernicky
Daily Press
The Roman Catholic Diocese of Richmond has struck out in its bid to conduct DNA
tests on additional evidence from the murder trial of Derek A. Barnabei.
The diocese sought the trial evidence in hopes that DNA analysis would show
Virginia executed an innocent man when Barnabei was put to death by lethal injection in
September.
But Norfolk Circuit Judge Charles Poston's order Wednesday denying the petition
that would have led to the additional testing scuttles the diocese's plan.
Poston did not give a reason for his decision.
Diocese attorney Seth A. Tucker said he was disappointed with the court's ruling.
"Now that the judge issued the order, there is no chance for a hearing on our
petition."
Barnabei was convicted in the 1993 bludgeoning death of his girlfriend, Old
Dominion University student Sarah Wisnosky. Prosecutors said he killed Wisnosky in the
bedroom of a fraternity house near ODU where he was living and dumped her battered body
into the Lafayette River.
The diocese sued to acquire a bloodstained washcloth, a bloodstained towel, a pair
of socks, hair and fibers -- all items introduced during Barnabei's trial but never tested
for DNA. The blood on those items, the diocese contends, could belong to someone other
than Barnabei or Wisnosky, possibly the real killer.
The diocese asked the court to release the evidence under a seldom-used 1994 law
that permits a court to donate trial evidence to a charitable organization.
The state attorney general had opposed the diocese's petition, saying justice was
served with Barnabei's execution, and the church was simply trying to get a foothold in
its on-going campaign against the death penalty.
"The diocese, however, candidly has admitted that it does not want the
evidence from Barnabei's trial for any charitable purpose," the Attorney General's
office said in court filings. "It admits that it has an agenda against the death
penalty and that it wants to attempt to prove through scientific testing that Barnabei was
'innocent.'"
The attorney for the diocese refuted the argument that the law allowing the
donation of criminal evidence to a charity does not apply to an organization with a
philosophical agenda. To deny the request simply because the diocese opposes capital
punishment flies in the face of the Constitution's protection of free speech, Tucker said.
The diocese also believes that proving a man's innocence is a charitable purpose,
he said. "We think the public has a right to know whether Virginia executed an
innocent man."
Barnabei's DNA showed up in vaginal swabs, but that doesn't prove Barnabei
murdered Wisnosky, Tucker said.
"That is not surprising because Barnabei and the victim were sexually
involved, and Barnabei testified that the two had consensual sex before her death, which
could have been up to 24 hours."
Because the tests were done using older technology, Barnabei's attorneys question
the results. Tucker believes newer technology on the swabs could identify a different
attacker.
Gov. Jim Gilmore authorized new tests of the victim's fingernail clippings less
than a month before the execution. The results pointed to Barnabei, but the speculation of
tampering circulated after the evidence disappeared for several days prior to the testing.
"I think the diocese is looking for the truth," said Kathleen Kenney,
associate director for the Richmond Diocese's Office of Justice and Peace. "Of
course, we have to accept whatever the outcome, but the state should have nothing to fear
by allowing the evidence to be tested with new scientific methods."
David Chernicky can be reached at 247-4743 or by e-mail at
dchernicky@dailypress.com*** |
Top of Page
February 15, 2001
Virginia denied a request by the Catholic Diocese of Richmond
|
February 15, 2001
On February 14, the Circuit Court of Norfolk, Virginia denied a request by the Catholic
Diocese of Richmond for the release of untested biological evidence from the case of Derek
Rocco Barnabei. Barnabei was executed by
lethal injection on September 14, 2000 for the 1993 murder of Sarah Wisnosky, a freshman
at Old Dominion University in Norfolk. The
Diocese had asked for the evidence so that scientists could perform DNA tests that could
link another suspect to evidence from the crime scene and cast doubt on Barnabei’s
guilt.
Walter F. Sullivan, Bishop of the Catholic Diocese of Richmond, said, “This is a real
loss for all Virginians. We have a right to
know whether the Commonwealth has executed an innocent man in our name. Because we fully expect the state to destroy the
evidence, we will never know if someone else committed the murder for which Derek Barnabei
was executed.”
The trial exhibits that the Diocese wanted to test include a bloodstained washcloth, a
bloodstained towel, a pair of socks, and hair and fibers.
None of these items were DNA-tested. All
of them were collected by the police and used as evidence in Barnabei’s trial. In addition, the Diocese wanted to conduct
sophisticated DNA testing on the vaginal/cervical swabs from the victim. Those swabs had been tested using older
technology, and a DNA expert had testified in Barnabei’s habeas corpus case that the
test results were consistent with there being a second semen donor. Such a finding would suggest that Ms. Wisnosky was
murdered by someone other than Barnabei, who was her boyfriend at the time.
“It is a sad day when a state would rather destroy evidence than test it and let the
facts out,” said Seth Tucker of Covington & Burling, who represented the Diocese
in its application. Tucker represented
Barnabei in the last year of his life. “Virginia
has done this once before, burning the untested DNA evidence after it executed Joseph
O’Dell. It is only a matter of time
before people get disgusted with this high-handed approach to life-and-death issues,”
Tucker said.
According to the Diocese, there can be no excuse for refusing to turn over the evidence. “The state always argues before an execution
that it cannot take time out for testing because to have an effective death penalty
executions must happen without the delay of long appeals and drawn-out proceedings,”
said Tucker. “But once the convict has
been executed, there is no excuse for not releasing the evidence. Here, the state wants to be sure that if it made a
mistake, that fact is buried along with Derek Barnabei.”
Barnabei’s guilt was proved entirely through circumstantial evidence.
The Catholic Church opposes the death penalty on the ground that it is immoral to take a
life. The Church took a keen interest in the
Barnabei case in particular, which was a cause celèbre in Europe and the subject of
international outcry. In July 2000, Pope John
Paul II sent a letter to Virginia Governor James S. Gilmore III urging him to exercise his
powers of clemency to block the execution. The
Pope also called for clemency in a public address days before the execution. The European Parliament passed a resolution
objecting to the execution as well.
On the day of Barnabei’s execution, Tucker asked Governor Gilmore to release evidence
from the case so that it could be tested posthumously.
According to Tucker, the Governor’s office has never responded to that
request.
Barnabei’s case was especially controversial because he proclaimed his innocence
to the end. His last words were, “I am
truly innocent and eventually the truth will come out.” A federal district court held that Barnabei’s
trial lawyer’s performance was “unreasonable” and did not meet the minimum
constitutional requirements guaranteed under the Sixth and Fourteenth Amendments, but the
courts refused to overturn the conviction and death sentence. |
Top of Page
January 22, 2001
The Catholic Diocese of Richmond today petitioned the Circuit Court of Norfolk, Virginia
to release evidence from the case of Derek Rocco Barnabei
|
January 22, 2001
The Catholic Diocese of Richmond today petitioned the Circuit Court of Norfolk, Virginia
to release evidence from the case of Derek Rocco Barnabei.
Barnabei was executed by lethal injection on September 14, 2000 for the 1993
murder of Sarah Wisnosky, a freshman at Old Dominion University in Norfolk. The Diocese seeks the evidence in order to
perform sophisticated DNA tests that could link another suspect to evidence from the crime
scene and cast doubt on Barnabei’s guilt.
Walter F. Sullivan, Bishop of the Catholic Diocese of Richmond, said, "Because of the
overwhelming support, both locally and internationally, that Derek Barnabei not be
executed because of possible innocence, I believe that we should pursue a fact-finding
process to address the question of guilt or innocence.
For that reason I am petitioning the Circuit Court of Norfolk, Virginia to
release all evidence in this case."Pursuant to a Virginia law that permits the court to donate trial evidence after the
conclusion of a case, the Diocese has asked the court to give it all of the trial exhibits
from the Barnabei case. The trial exhibits
include a bloodstained washcloth, a bloodstained towel, a pair of socks, and hair and
fibers. None of these items were DNA-tested. All of them were collected by the police and used
as evidence in Barnabei’s trial.
“If any of these items contain DNA that does not match Barnabei nor Ms. Wisnosky,
that would strongly suggest that someone other than Derek Barnabei was the real
killer,” said Seth Tucker of Covington & Burling, who represents the Diocese in
its application. Tucker represented Barnabei
in the last year of his life. “The DNA
on these items could put someone else at the scene of the crime,” said Linda
Goldstein of Covington & Burling, who also represented Barnabei. Barnabei’s guilt was proved entirely through
circumstantial evidence.
The Catholic Church opposes the death penalty on the ground that it is immoral to take
a life. The Church took a keen interest in
the Barnabei case in particular, which was a cause celèbre in Europe and the subject of
international outcry. In July 2000, Pope John
Paul II sent a letter to Virginia Governor James S. Gilmore III urging him to exercise his
powers of clemency to block the execution. The
Pope also called for clemency in a public address days before the execution. The European Parliament passed a resolution
objecting to the execution as well.
The Diocese of Richmond previously petitioned a Virginia court for the release of DNA
evidence following the execution of Joseph O’Dell in 1997. The request was denied, however, and Virginia
officials burned the evidence last year.
The request for the trial evidence from the Barnabei case would also extend to
the Physical Evidence Recovery Kit (“PERK kit”) from Ms. Wisnosky. Some items in the PERK kit, such as
vaginal/cervical swabs, were tested before Barnabei’s trial and they confirmed the
presence of his DNA. Barnabei testified that
the two had had consensual sex on the night of her murder, and Ms. Wisnosky had
acknowledged that she was in a sexual relationship with Barnabei well before her death.
One of the controversies in the Barnabei case was whether the vaginal/cervical
swabs contained DNA from a man besides Barnabei. Ronald
Ostrowski, Ph.D., a biology professor at the University of North Carolina, testified in
Barnabei’s habeas corpus case that the DNA test results were consistent with the
presence of DNA from another man. Virginia
refused to use newer, more powerful DNA technology on the sample. Testing using currently available technology known
as “short tandem repeats” or “STR” technology could definitively
answer the question of whether someone else’s DNA is present on the swabs. “If another man’s DNA is found on the
swabs, that man would have a lot of explaining to do.
We know why Barnabei’s DNA was found there – he and the victim
were intimate. But someone else’s DNA
would raise entirely new questions,” said Tucker.
On the day of Barnabei’s execution, Tucker asked Governor Gilmore to release
evidence from the case so that it could be tested posthumously. According to Tucker, the Governor’s office
has never responded.
Tucker, who represents the Diocese in its application, said, “DNA evidence does
not lie. If the state is sure it killed the
right man, it will not oppose today’s application for trial evidence or the prior
request for the evidence in police custody. The
only reason to fight these requests is the nagging fear that the state killed the wrong
man when it executed Derek Barnabei.”
Some of the evidence in the Barnabei case made headlines a few months ago. Less than three weeks before Barnabei’s
execution, the PERK kit, which also contained other evidence taken from the victim,
suddenly disappeared from a locked evidence storage room at the Norfolk Circuit
Courthouse. Court personnel and state
employees were the only people who could have visited the evidence room without an escort. The PERK kit was found by Virginia State Police
three days later in an unrelated file in a different locked evidence storage room at the
same courthouse. The seals on the PERK kit
had been opened.
Governor Gilmore ordered the Virginia State Police to investigate the disappearance,
but they recently closed their investigation without identifying the person who took or
opened the envelope containing the evidence.
Days before Barnabei’s scheduled execution, Governor Gilmore ordered DNA testing
of the victim’s fingernail clippings from the PERK kit. The tests revealed blood from Ms. Wisnosky and
trace amounts of DNA from Barnabei. Barnabei’s
lawyers have dismissed the result as insignificant, since it was already known that
Barnabei and Ms. Wisnosky had been together within a few hours before her death. In addition, the fingernail clippings were among
the pieces of evidence that disappeared and then reappeared in late August, raising
questions about whether a government employee had tampered with them.
Barnabei’s case was especially controversial because he proclaimed his innocence
to the end. His last words were, “I am
truly innocent and eventually the truth will come out.” A federal district court held that Barnabei’s
trial lawyer’s performance was “unreasonable” and did not meet the minimum
constitutional requirements guaranteed under the Sixth and Fourteenth Amendments, but the
courts refused to overturn the conviction and death sentence. The same federal court said that there was
“objective scientific evidence casting substantial doubt” on the state’s
medical expert’s testimony on the crucial question of whether Barnabei and Ms.
Wisnosky had consensual sex. Barnabei denied
that he raped or killed Ms. Wisnosky. Without
a finding of rape, Barnabei would not have been eligible for the death penalty. |
Top of Page
September 20, 2000
We would like to take the opportunity to thank the thousands upon thousands of people that
have contributed in the fight against the atrocity that Derek had to suffer.
Thank you Jane Barnabei, Craig Barnabei and all your family, whose love for your son and
brother gave you the strength to fight an unjust world.
We will always echo Derek’s last words ``…to go on with our lives and fight.'' And fight we will.
Thank you to the Italian journalist Patrizia Mintz for your courage, and for having
brought Derek’s injustice into our hearts. We
are better people because of you. Fabrizio
Vigni, from the Italian Parliament, thank you for all you’ve done and for all you
will continue to do in the “Derek Rocco Barnabei Foundation.” Although located in Siena, Italy, we know we will
hear the thunder throughout the world.
Tony Di Piazza, only a gentle soul like yours can mobilize entire communities for the good
of other people. Many thanks to you, your
love for all, and your altruism that makes this world a better place. Thank you.
Jack Borruso for your countless hours spent on the Internet preparing this document. Only
Derek said it best: “This website is my
voice beyond the grave!! …They have conspired against me to silence me. You and your
efforts on this website makes their efforts to silence me an impossibility. God bless you
Jack - and keep my memory alive as you already have.”
We thank the Law Firm of
Covington & Burling,
Seth Tucker, Linda Goldstein, Amy Levine, and all your associates for your efforts,
expense, and for having re-written history.
Frank Slaton, the private investigator that for over five years has investigated each
shred of evidence, but will not rest until the real perpetrators of this crime will be
apprehended. Thank you.
The number of people is so high that it would take pages and pages to list all that gave
their love and support.
Thank you, Laura Guglielminetti for scouring the “Wire Services” daily in
search of “news” or a glimpse of
that “Press Release” that would free Derek.
We Thank:
His Holiness John Paul II
The Italian People
The Italian Parliament
The Italian Media
The People of France
Nicole Fontaine,
President of the European Parliament
The European Parliament
Christina Rallo, Esq.
America Oggi
Luca Dini
Gianna Venturini
Marco Bardazzi
Alessandra Farkas
Alessandro Milan
Radio 24 Ore
Jacqueline Perkins
Connie Wilkins
Catherine Pinzka
Professor Donato A. De Simone
Pia De Simone
The Thousands of People that signed our E-petition
(Including that half dozen or so that used that Forum to express their vile-selves)
Americans For Justice, Comprised by:
Tony Di Piazza, Jack Borruso, Cav.
Peter Cardella, Stefano
Turriciano, Cathy Lima, John Mistretta, Frank Alesci, Salvatore Campisi, Vincenzo Bologna,
Dominick Di Colandrea, Giuseppe Giaramida, Vincent Cottone, Tony Montalbano, Angelo
Messina, Salvatore De Castro, Salvatore Messina, Angelo Luparello, Joe Ranieri, Giuseppe
Borruso, Victor Celli, Philip Bilello, Tony Mulè, Gaspare Pipitone, Giovanni Spatola,
Gerard Marrone, Hans Mansoori, John Ficano, Sal Amendolia, Gino Dolce.
On September 14,
2000
7:31:17 PM
Tony Di Piazza Said it all:
“HI DEREK -
THEY WERE ABLE TO TAKE CONTROL OF YOUR PHYSICAL LIFE BUT NOT
YOUR SPIRIT AND SOUL.” |
Top of Page
Why Is The Missing Watch So Important?
|
 |
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.
Truth: After having analyzed enhanced photographs of the missing watch, Mr. John S.
Gupton, a watch specialist with a degree in Criminology, swore an affidavit that the watch
the victim was wearing would have stopped within 15 to 20 minutes of being submerged in
water. Further enhancement of the photograph also shows the watch to have stopped at
6:52.
|
 |
 |
Truth: After having questioned Ms. Nikki Vanbelkum, the victim's
roommate, Mr. Frank Slaton, the investigator, swore an affidavit that Ms. Vanbelkum
"... during the early morning hours [approximately 6:30 AM] of September 22, 1993,
Ms. Vanbelkum heard a voice from outside the building and she believed the voice was that
of Derek Barnabei."
|
 |
 |
 |
The prosecution established the time of the murder to be between
12:00am and 12:30am yet, Ross Fivored, Jason Silverstein, Roland Gee and even Adrian Tate,
a close friend of Sarah Wisnosky, all testified that they saw Derek at a party at that
exact time.
According to watch experts John Gupton and Marc Young we can conclude that the
victim's body was placed in the river around 6:30am because in their opinion the watch
would have stopped between 5-20 minutes of the victim's body being placed in the river.
However, according to Nikki Vanbelkum, the victim's roommate, she told investigator
Frank Slaton that she heard a voice from outside her building at approximately
6:30am and she believed the voice was that of Derek Barnabei speaking with
someone.
Derek was not at the scene of the murder during the time the prosecution claims the murder
occurred nor was he near the river when the body was placed in the water.
|
 |
 |
 |
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.
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
|
Top of Page
September 14, 2000
There is No Turning Back
|
| Governor Gilmore,
In light of the underhanded "slight of hand
trick" by your public relation machine where they misled your people by not only
implying but outright lying about the DNA results, claiming that the positive DNA was from
the bloody fingernail, I once again ask that you reassess your position and STOP this
madness.
I have been involved in community activism, which also involves political
activism, and I KNOW what drives politics and decision making very well. You KNOW what I
mean.
You were elected to make difficult, non-political decisions and you can do this by
rising above it all and stopping this unjust rush to judgement.
As I have previously mentioned, I have been always a registered republican and so
are most Italian-Americans. This case has so incensed our community that if this execution
goes through I will consider starting a nationwide drive for change of party affiliation
to the democratic party immediately. I will also see to it that George Bush Jr. is
informed of this drive immediately.
I just can't stay in a party anymore that boasts morality while at the same time
hands over justice to special interests and disregards due process for the people they
were elected to protect.
Governor Gilmore, unless you stop this this execution and unless the supreme court
steps in, tonight I will go to sleep with sadness in my heart for what you and the people
of Virginia have done to an innocent man. I will also be at peace with myself knowing I
have done all I could to stop this madness on the part of you and your people. YOU AND ALL
VIRGINIANS WILL LIVE WITH THIS STAIN FOR THE REST OF YOUR LIVES AND HOPE AND PRAY YOU WILL
HAVE MANY SLEEPLESS NIGHTS.
For me, I will be a little wiser than Derek and WILL NEVER SET FOOT IN VIRGINIA
EVER AGAIN.
TONY DI PIAZZA |
September 13, 2000
A letter to Gilmore
|
September 11, 2000
Governor Gilmore, We will grant you that you have a powerful public
relations organization at your disposal, but please don't insult our intelligence by
making such a moral and self-righteous statement against the Italians both abroad and
here.
I have no problems accepting that the people of Virginia have a right to dispense
whatever appropriate punishment they deem proper for crimes. However, that is not the
question here.
At first, after the disappearance of the evidence your office insinuated that
Frank Slaton, Barnabei's investigator, along with Nightline might have been responsible
for the disappearance because Slaton knew that the evidence would point to Barnabei. Well,
let's assume that he was able to make himself invisible and spooked all your clerks and
cameras and got away with it, after all you never proved that he did, are you telling us
that he made himself invisible again and brought back the evidence pointing to Barnabei?
Do you really believe that any sane person would believe this absurdity? Please
answer that Mr.Governor.
Governor Gilmore, the sad reality is that some sinister forces in Virginia want
this case to go away and quickly and it's those same forces that made the envelope
disappear and reappear with evidence of tampering to crucial evidence that could not have
been directly tampered with because they had already been tested and a record existed. The
same was not true for the fingernails and therefore it was easy to manipulate that DNA.
Your experts say that the fingernail envelope was not tampered with. Well, we have heard
people do more difficult things.
Why all this secrecy and speed of this testing? Why has your office not
released DNA testing in the Washington case which was authorized over a month ago and yet
in this case results were obtained at superhuman speed? Why was the defense not
allowed to participate in the testing? Why was the envelope containing the fingernail
clippings destroyed?
Governor Gilmore, I KNOW THIS IS THE LAND OF THE FREE, BUT IT IS NOT THIS KIND OF
FREEDOM TO VIOLATE A PERSON'S CONSTITUTIONAL RIGHT that our forefathers had in mind.
All my adult life I have taken pride in my U.S. citizenship and have many times
found myself defending what it stood for. These last few weeks you have rocked that
foundation of belief that our nation stands for justice and moral correctness.
Believe me, you can sympathize all you want with the victim's family. We feel for
them too, but there is no justice for the victim's family because unless the Federal
Courts step in, your state will execute an innocent man while the true murderers roam
free.
Maybe you don't care, but the BARNABEI case will forever stain your state and give
it an unpleasant page in the history books. I can assure you this will be remembered
as SACCO AND VANZETTI #2 and it happened during your tenure.
Governor Gilmore, we all have to live with our decisions and you will have to with
this tragic one. Man can alter the course of justice on this earth but will be
powerless before God's judgement.
TONY DI PIAZZA |
Top of Page
Sessions urges Gilmore to approve DNA testing
|
BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
September 8, 2000
William S. Sessions, director of the FBI under the Reagan and Bush administrations, has
written Gov. Jim Gilmore urging him to approve the DNA testing requested by Derek Rocco
Barnabei, who is to be executed on Thursday.
"As a former United States
attorney, federal judge, and director of the Federal Bureau of Investigation, I have been
involved in law enforcement for much of my professional career," wrote Sessions.
"It is my firm belief that no man should be put to death when there exists unexamined
scientific evidence that might be relevant to questions of his guilt or innocence. . . .
The evidence that Barnabei seeks to have tested is critical."
Mark A. Miner, spokesman for Gilmore, said the governor will not be making any
decision on the testing until the Virginia State Police completes its investigation of
last week's disappearance and reappearance of key evidence in the case.
Barnabei, 33, was sentenced to die for the 1993 rape and slaying of Sarah J.
Wisnosky, a 17-year-old freshman at Old Dominion University. She was last seen alive in a
room Barnabei rented in a Norfolk house where he lived with several other young men.
A DNA test showed the presence of his spermatozoa in her vagina. However, the two
were dating and Barnabei said it was consensual sex.
Among the items Barnabei wants tested for DNA is a fingernail clipping taken from
Wisnosky that is said to be blood-stained.
That evidence was in an envelope that was discovered missing last week in the
Norfolk Circuit Court clerk's office. It was discovered three days later in a place where
it should not have been.
Gilmore ordered an investigation into its disappearance and to determine if the
evidence had been compromised.
Meanwhile, Amnesty International yesterday asked Gilmore to grant Barnabei a
reprieve pending the "investigation of possible misconduct by the commonwealth of
Virginia."
"Amnesty International is profoundly concerned by the circumstances
surrounding the disappearance and unexplained reappearance of this crucial evidence,"
said Jonathan Pearson, acting director of Amnesty International's Mid-Atlantic Regional
Office.
Barnabei - who has been moved from death row at the Sussex I State Prison near
Waverly to the Greensville Correctional Center in Jarratt, where executions are carried
out - is scheduled to meet today with three members of the Italian parliament.
Barnabei's case has attracted great interest in Italy where many believe him to be
innocent. |
Top of Page
Purity of DNA evidence in doubt
Barnabei's team: Container opened
|
BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
Sep 10, 2000 It is possible, but not likely, that evidence deemed critical
for DNA testing by lawyers representing condemned inmate Derek Rocco Barnabei may have
been compromised, a state official said yesterday.
Barnabei is to be executed Thursday for the 1993 rape and capital murder of Sarah
J. Wisnosky, a 17-year-old freshman at Old Dominion University. On Friday, Gov. Jim
Gilmore ordered DNA testing on biological material found on her fingernail clippings.
Barnabei contends blood under the fingernails comes from the real killer.
But also at the top of the list of things sought for DNA testing by Barnabei's
lawyers is a vaginal swab. New DNA technology might be able to detect the presence of
spermatazoa from a second man.
Earlier DNA tests proved Barnabei's sperm was present, but he and Wisnosky were
dating, and Barnabei contends the intercourse was consensual.
Last month, an envelope containing the nail clippings, the swab and some slides
disappeared from where they were supposed to be kept in the Norfolk Circuit Court clerk's
office. Gilmore ordered a state police investigation and the envelope was found in a room
where it should not have been.
The container holding the fingernail clippings from both hands was intact, leaving
them uncompromised and suitable for testing, the governor said Friday. However, Barnabei's
lawyers said yesterday, the container with the vaginal swab had been open, casting doubt
on its suitability for testing.
"This whole thing is just unbelievably suspicious," said Linda C.
Goldstein, one of Barnabei's lawyers. "Outrageous," said Seth A. Tucker, another
member of Barnabei's legal team.
Goldstein and Tucker also complained they were not allowed to have an independent
observer present at the testing of the clippings.
Walter Felton, counselor to Gilmore, said Paul Ferrara, director of the Virginia
Division of Forensic Science, told him it appeared the ends of the cardboard tube holding
the vaginal swab were "open a bit."
But, "there was no evidence that somebody had deliberately gone and pulled
them out," Felton said of the swabs. Felton said Ferrara indicated further
examination would be needed to make sure they had not been tampered with.
Felton said the evidence was being held inside two envelopes. The outside envelope
was the clerk of the court's, and the inside envelope was from the Division of Forensic
Science. Both envelopes had been opened, he said. The trial transcript showed that the
inner envelope had been opened during the trail, he said.
Goldstein said that inside the medical examiner's envelope were three cardboard
containers. One held the nail clippings, one held specimen slides and one held vaginal,
oral and anal swabs.
Meanwhile, a hearing has been tentatively set for Tuesday in federal court in
Richmond on a suit filed by Barnabei's lawyers alleging the state was responsible for any
tampering that occurred with the evidence and that Barnabei's execution should be blocked.
|
Top of Page
Judge rejects lawyers' petition on Griffith
|
By MATTHEW DOLAN
© 2000, The Virginian-Pilot
Septmber 7, 2000NORFOLK --
The city's chief judge will not act on a
petition calling for new Circuit Judge Chuck Griffith to remove himself from hearing
criminal cases.
The petition, signed by 22 lawyers, stemmed from the use of Griffith's name as a part
of a ``Law and Order Team'' in a political ad by commonwealth's attorney candidate Norman
A. Thomas.
Thomas served as Griffith's chief deputy during Griffith's tenure as
commonwealth's attorney.
The lawyers who signed the petition argued that the ad gave the appearance of
political activity by Griffith, which is not allowed under state judicial rules. They also
said the appearance of teaming up with a prosecutor made it impossible for Griffith to
judge criminal cases fairly.
But Chief Circuit Court Judge Charles E. Poston has rejected that argument,
according to a memo provided to The Virginian-Pilot on Wednesday. ``Whether or not a judge
is recused from a case is a personal decision for that judge,'' Poston wrote in an Aug. 31
memo to his colleagues. ``. . . I see nothing requiring Judge Griffith's recusal from all
criminal cases.''
However, Griffith could recuse himself from an individual case if a defense
attorney filed a motion asking for his removal and Griffith agreed, Poston wrote.
Poston and Griffith discussed the controversy at length, according to the memo. In
those conversations, Griffith said he knew nothing about the ad before it appeared in the
Norfolk Compass section of The Pilot.
Griffith, who became a judge in May, should begin hearing criminal cases in
November, Poston wrote. He has not heard criminal cases yet to create a buffer from the
cases he once oversaw.
``There is, in my view, no action for us to take in response to the attached
petition,'' Poston wrote in the memo.
Poston and Griffith did not return messages seeking comment Wednesday. In the
memo, Poston said he advised Griffith not to comment publicly on the issue.
Until this week, Thomas stood by his ad, saying it had been misconstrued. He had
blamed defense attorneys for the controversy because some of them support his opponent,
Democrat John R. ``Jack'' Doyle III.
But on Wednesday, Thomas was contrite.
``I worked effectively over the last several years with Chuck Griffith during the
time he served as Norfolk commonwealth's attorney,'' Thomas said. ``. . . However, I
recognize that recent publicity about the July 27 ad caused a number of good and
well-meaning citizens to question the ad's propriety.
``I regret that fact, and, to those persons, I apologize.''
Some of the petition's signers still worried Wednesday about Griffith's ability to
judge criminal cases impartially. ``I still feel uncomfortable,'' said Curtis T. Brown, a
Norfolk criminal defense attorney.
For others, there is hope that the judge and the prosecutor can move beyond their
once-close working relationship.
``I signed the petition as more of a message to Chuck Griffith,'' said Allen D.
Zaleski, a Norfolk attorney. `` `You're a judge now, not a prosecutor. Get in the judge
mode and be fair.' I think it's a message he's heard now.''
But the saga may not be over.
The Judicial Inquiry and Review Commission, a state agency that investigates
accusations of misconduct by judges, started an inquiry after the ad's publication. Donald
Hall Kent, counsel for the commission, did not return a call seeking comment Wednesday. |
Top of Page
Alan Dershowitz: "Consider me on your side."
|
September 2, 2000
A few minutes after Alan M. Dershowitz, Professor of Law, at Harvard University,
released an interview to La Repubblica, the largest newspaper in
Italy, personally called Derek at Sussex I State Prison, and assured him that from this
moment he may consider him on his side. Mr. Dershowitz will avail himself of the offices
of Professor Barry Scheck, of Project Innocence, of the Cardozo School of Law in New York
City.
Professor Scheck, is already collaborating with Derek's legal team with regards to
DNA testing. |
Top of Page
A letter from The Rutherford Institute to the Governor
|
September 2, 2000
The latest twist in Barnabei's saga has drawn the attention of national and international
groups that say the evidence problem shows the case has been mishandled. The Rutherford
Institute, a conservative civil liberties group, called yesterday on the U.S. Justice
Department to "conduct a full investigation and determine whether Commonwealth
officials were responsible."And Ajamu Baraka, acting director of Amnesty
International USA's Program to Abolish the Death Penalty, said: "This incident casts
further grave doubts on the reliability and fairness of Virginia's capital justice system.
. . . A young woman is dead and a man's life is at stake, and what we get from the State
of Virginia is sloppy police investigation, inadequate defense for the accused and
evidence that is missing one day and found the next." |
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Top of Page
Evidence Found
|
September 1, 2000
An envelope containing evidence from the murder trial of Derek R. Barnabei, convicted of
killing an Old Dominion University student in 1993, was found Friday in the Circuit Court
Evidence room. The evidence containing fingernail clippings and other
samples from the victim, Sarah J. Wisnosky, apparently had been misplaced, authorities
said.
The evidence was discovered missing Tuesday when Gov. Jim Gilmore sent police to
retrieve it from the court. Gilmore was reviewing the case to decide whether to order more
DNA testing.
Barnabei was convicted of raping and killing Wisnosky, a 17-year-old freshman from
Lynchburg. He claims he is innocent and has asked for DNA tests to be performed on blood
and hair found on fingernail clippings taken from Wisnosky's body. |
Top of Page
Virginia governor orders probe in death row case
|
August 31, 2000
Evidence has disappeared from the case file of death row inmate Derek Barnabei, whose
request for a review of DNA samples to prove his innocence has generated international
support. The evidence, believed to be fingernail clippings and semen
collected from the woman Barnabei was accused of raping and killing, was reported missing
on Tuesday from the Norfolk Circuit Court Clerk's office.
Gilmore asked state police to try to determine what happened to the evidence.
The court clerk's office told Gilmore one of Barnabei's investigators, along with a
television crew from the ABC News program ``Nightline,'' had access to the evidence
earlier this month, the governor said.
The investigator, Frank Slaton, denied removing or mishandling the evidence. A
spokeswoman for ``Nightline'' declined comment until more was known about the situation.
Seth Tucker, one of Barnabei's defense attorneys, described the discovery that
evidence was missing from the Norfolk Circuit Court as ``outrageous.''
``If the government of Virginia has lost the DNA evidence in this case, it has an
awful lot of explaining to do,'' he said. ''That would be, in my view, a serious crime.'' |
Top of Page
Derek's Willing to Take a Polygraph
|
Agust 28, 2000
Derek has made himself available for a polygraph test, but the Commonwealth refuses to
grant this request. |
Top of Page
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