Virginia Supreme Court Exonerates Law School Clinic Client of 1978 Rape


From left, Innocence Project Clinic directors Matthew Engle and Deirdre Enright, Bennett Barbour and third-year law student Ashley Brown. The Supreme Court of Virginia granted Barbour a writ of actual innocence, in light of DNA testing results that excluded him from the rape for which he was convicted in 1978.

May 24, 2012

The Supreme Court of Virginia on Thursday granted a writ of actual innocence in the case of Bennett Barbour, a client of the University of Virginia School of Law's Innocence Project Clinic who was wrongfully convicted of rape in 1978.

"Upon consideration of the petition for a writ of actual innocence — the Court is of the opinion that the petition should be granted and writ of actual innocence be issued," the court wrote in its order Thursday.

Barbour, of James City County, was convicted of the rape of a 19-year-old College of William & Mary student 34 years ago. DNA testing in 2010 excluded Barbour from the crime, and implicated instead a convicted rapist who was arraigned in Williamsburg-James City Circuit Court in late April.

Barbour's lawyers, Matthew Engle and Deirdre Enright of the Law School's Innocence Project Clinic, said they are pleased the court has cleared Barbour's name.

"After today, Mr. Barbour will no longer have to shoulder the burden of being falsely labeled a rapist by the Commonwealth of Virginia," Engle said. "Given the wealth of evidence that existed in 1978 suggesting that Mr. Barbour was innocent, including three alibi witnesses and blood typing tests that excluded him, he should never have been convicted of this crime in the first place. While the court's decision today corrects a gross injustice, it cannot make up for the last 34 years."

At his trial in 1978, Barbour was sentenced to 10 years in prison for the rape, but was paroled after 4½ years thanks to friends and family who presented the parole board exculpatory evidence, including the fact that Barbour's blood type did not match the victim's true attacker.

His case was one of roughly 1,000 DNA samples dating back to the 1970s that were ordered tested by then-Gov. Mark R. Warner. The results indicating that Barbour's sample did not match the DNA evidence from the crime did not come to light until earlier this year. (More)

The Virginia Attorney General's Office backed Barbour's request for a writ of actual innocence, and asked that the Virginia Supreme Court expedite its review.

Engle said that Thursday's order is thought to be only the second writ of actual innocence granted by the Virginia Supreme Court, the other being for Calvin Cunningham, a Newport News man who was exonerated of rape in 2011. The Virginia Court of Appeals has also granted two writs of actual innocence, bringing the state's overall total to four.

Barbour's case demonstrates the need for improved eyewitness identification procedures in Virginia, Enright said.

"In 1978 and now, eyewitness identifications are extremely compelling to juries," she said. "The law has not changed regarding the admissibility of eyewitness identifications, even though we know now that eyewitnesses are often wrong, and memory is far less accurate then we care to admit. Mr. Barbour's insistent denial that he committed this rape, [and] his alibi, which consisted of two family members and a relative stranger — none of it mattered in the face of the victim's wrongful identification.

"Although Mr. Barbour is finally exonerated," she continued, "there will be other men and women wrongfully convicted in Virginia based on incorrect eyewitness identifications, and DNA will not always be present to exonerate them."


Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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