Bennett Barbour

Time Served: 34 years

In 1978, Bennett Barbour, a 22-year-old handyman whose wife was pregnant with their first child, was wrongly convicted of rape. He spent five years in prison, and nearly thirty years after he was paroled, DNA tests proved his innocence and implicated another man. Barbour was cleared by DNA testing performed by the Virginia Department of Forensic Science’s post-conviction testing project.

On February 7, 1978, a 19-year-old student at the College of William and Mary was sexually assaulted at gunpoint. As soon as the rapist left, the victim called the police. When investigators arrived, the victim told them that her assailant weighed 145 pounds and was 5’6” tall. There had been a number of other rapes in the area during this time.

The Investigation and Trial

One week after the attack, the victim was shown a photo array. The victim picked Barbour’s photo out of the lineup, and then picked him out of two live lineups (consisting of the same people in different orders). The next day, Barbour was arrested. He weighed only 115 pounds at the time of his arrest. Furthermore, Barbour suffered from a brittle-bone disease and had a pin in his elbow at the time, making rape seem unlikely.

Hair taken from the scene did not match Barbour’s, and tests performed on the semen revealed only the presence of Type A blood. The victim had Type A blood, while Barbour had Type B.

At the trial, the principle evidence against Barbour was the eyewitness testimony of the victim, though he did not match the victim’s initial description, and no physical evidence tied him to the crime. His alibi, that he was watching television with his family and neighbors that night, was corroborated by three witnesses at trial.

In spite of all of this, Barbour was convicted of rape on April 14, 1978 and sentenced to ten years in prison. According to the post-sentence report, the investigators from the case still had doubts about Barbour’s guilt, and were reportedly continuing investigation.

Post-Conviction Investigation

After spending almost five years in prison, Barbour was released on parole the first time he came up for consideration.

In 2001, the Virginia Department of Forensic Science learned that some serologists who had performed blood-type testing on physical evidence from 1973 to 1988 (before DNA tests were standard) kept samples of the evidence. In September 2004, then-Virginia Governor Mark Warner ordered that the DNA evidence in 31 sample cases be retested. When this cleared Phillip Leon Thurman and Willie Davidson of rapes (both have since been pardoned), Warner ordered the retesting of evidence from approximately 800 cases from 1973 to 1988.

The project was intended to take 18 months, but instead took more than seven years. Once the testing was completed, the Virginia Department of Forensic Science refused to release information on the cases. After denying repeated Freedom of Information Act requests from the Mid-Atlantic Innocence Project and the Richmond Times-Dispatch, the state finally agreed to release a partial list of the DNA exclusions to a volunteer attorney, Jonathan Sheldon.  Barbour only learned that the evidence from his case still existed and that the state lab had obtained DNA results when Sheldon contacted him in early 2012.

Barbour sought the assistance of the University of Virginia School of Law’s Innocence Project, which agreed to represent him.  The investigation revealed that the state lab had provided the exonerating results to the Commonwealth’s Attorneys’ Office in June of 2010 though Barbour was not informed of the testing until 18 months later, when Sheldon contacted him. Virginia authorities claimed that they had not been able to locate Barbour to inform him of his innocence.  However, his correct address and phone number were publicly listed.

Indeed, the tests implicated a convicted rapist who has since been charged with the crime for which Barbour spent years in prison and on parole.

On May 24, 2012, the Supreme Court of Virginia issued a writ of actual innocence, formally clearing Barbour of the rape.

Life after Exoneration

Barbour died January 10th, 2013, after a long battle with bone cancer. Just two months prior to his death, he had voted in his first ever presidential election. “It felt good, it really did,” said Barbour afterwards. He was 57 years old.

State: Virginia

Charge: Rape

Conviction: Rape

Sentence: 10 years

Incident Date: 02/07/78

Conviction Date: 04/14/78

Exoneration Date: 05/24/12

Served: 34 years

Race of Defendant: African American

Status: Exonerated by DNA

Contributing Causes of Conviction: Eyewitness Misidentification

Innocence Project Involved: No

Death Penalty Case: no

Accused Plead Guilty: No

Compensation: Not Yet

Type of Crime: Sex Crimes

The Alternative Perpetrator Identified: Yes

Real Perpetrator Convicted of Subsequent Crime: Yes

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