!
COpy
VIRGINIA: k
theJ~-€owdo/r~he/d dthe J~ -€owdPl3~ in the
In Re: Bennett S. Barbour, Petitioner
Record No. 120372
Upon a Petition for a Writ of Actual Innocence
Upon consideration of the petition for a writ of actual
innocence filed March 6, 2012, the Commonwealth's answer, and the
Attorney General's dec
the
ration, the Court is of the op
on that
ition should be granted and the writ of actual innocence be
issued.
Upon a plea of not guilty, Bennett S. Barbour was tried by a
jury and convicted in the Circuit Court of the City of Williamsburg
and James City County of rape and was sentenced to ten years'
imprisonment.
ie
Barbour's direct appeal concluded when this Court
ed his petition
appeal on November 30, 1978.
As a result of a Virginia Department of Forensic S
("DFS") review of older case files containing human bio
ence
cal
evidence, the DFS tested evidence that had been obtained from the
victim and from Barbour at the time of t a l .
tested using scientif
of Barbour's trial.
by
The evidence was
methods that were not available at the time
The certificate of analysis initially issued
DFS contained preliminary factual findings excluding Barbour
as a contributor of t
DNA isolated on the biological evidence
recovered from the victim.
DFS indicat
testing with known DNA samples from
it required additional
victim and from Barbour.
r obtaining known samples, and conducting additional testing,
DFS issued a certificate of analysis on March 6, 2012, which
contained findings eliminating Barbour as a contributor of the
biological evidence.
Based upon this information, Barbour has filed a petition for
a writ of actual innocence pursuant to Code
§§
19.2-327.2 et seq.
alleging that he is actually innocent of the crime for which he was
convicted.
To succeed, among other things, Barbour must identify,
by clear and convincing evidence, the human biological evidence and
the scientific testing supporting his allegation of innocence, the
reason the evidence was not previously subjected to the testing
described in the petition, and that no rational trier of fact could
have found him guilty beyond a reasonable doubt.
After conducting
his own evaluation of the facts, the Attorney General "agrees that
no rational trier of fact could have found proof of Barbour's guilt
for the rape [of the victim] beyond a reasonable doubt had the new
scientific evidence been available at the time of his trial" and
affirmatively joins in Barbour's request for relief.
Accordingly, as required by Code
§
1
19.2-527.5, the Court finds
by clear and convincing evidence that petitioner has proven all of
the required allegations contained in Code
§
19.2-327.3(A) and that
no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.
The Court grants the requested writ of actual
The Court recognizes that the concession by the Attorney General
does not relieve this Court of its judicial obligation to review
the pleadings and the record before us.
The Court, however, deems
it prudent to accept the Attorney General's declaration that an
independent review of the underlying criminal record .is unnecessary
for the Court to evaluate the merits of the petitioner's claim.
See, ~, Copeland v. Commonwealth, 52 Va. App. 529, 664 S.E.2d
528 (2008).
1
2
innocence and vacates Barbour's conviction for rape.
The matter is
remanded to the circuit court with instructions to immediately
enter an order of expungement.
A Copy,
Teste:
Clerk
Copy ofthis order sentto:
Clerk_ _ _ _ _ _ _ _ _ _ __
Petitiol~er_ _.__ ....... _ _ _ _ _ _ __
Pctitio~:;r··s
I\Lru :
RespC:1d~nt
Respondent's I'
Attorney Gc:ncml_ _ _ _ _ _ _ _ __
Supt. Penitentiary _ _ _ _ _ _ _ _ __
Oilier________________________
~
3