Man seeks to clear name

3-7-2012 Virginia:

Charles City County man convicted of a 1978 rape in Williamsburg is asking the Virginia Supreme Court for exoneration in light of new DNA evidence.

In 2010, testing failed to identify Bennett S. Barbour's DNA in seminal fluid found on the victim's underwear — but there was a "cold hit" on a convicted sex offender who has yet to be named by authorities.

"This is an egregious miscarriage of justice," Barbour's lawyers with the Innocence Project Clinic at the University of Virginia School of Law wrote in a petition for a writ of actual innocence filed Tuesday.

Barbour, 56, under treatment for cancer, always has maintained his innocence. He was arrested when he was 22 in the Feb. 7, 1978, rape of a 19-year-old College of William and Mary student.

According to Barbour's lawyers, Matthew Engle and Deirdre Enright, the testing implicates a sex offender charged, but not prosecuted, in an earlier attack but who was convicted in a later attack and is now on parole.

Nate Green, the current Williamsburg commonwealth's attorney who was in grade school at the time of the rape, said he believes the testing exonerates Barbour and that his office and police are investigating the case in light of the new evidence.

He said he could not comment about the person identified by the DNA testing. He said Tuesday that he anticipates making a decision within a month on whether to prosecute the new suspect in the 34-year-old case.

Barbour's 1978 trial transcript has not been located. But his lawyers said it appears the commonwealth's case was largely based on the victim's identification.

She was raped in her fiancé's apartment by a man armed with a handgun. Once the attacker left she immediately called police. A week after the attack, the victim picked out a mug shot of Barbour taken for a petit larceny arrest a year earlier.

Barbour was arrested the next day and has denied his guilt ever since.

DNA testing was not available at the time of Barbour's trial, but he had three witnesses backing up his alibi defense. Also:

..For the remainder of this story: by Frank Green | Richmond Times-Dispatch