THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: MONDAY, June 27, 1994 TAG: 9406270129
SECTION: FRONT PAGE: A5 EDITION: FINAL
SOURCE: BY JUNE ARNEY, STAFF WRITER
DATELINE: 940627 LENGTH: Medium
A federal judge ordered the resentencing, ruling that prosecutors failed to turn over evidence to defense lawyers - evidence that could have saved Barnes' life.
{REST} Barnes, 29, was convicted of gunning down 73-year-old Hampton grocer Clyde Dewey Jenkins in June 1985 in a robbery attempt; store clerk Mohammad Afifi also was killed in the incident. Barnes was sentenced to die in September 1986 for Jenkins' murder. But the sentencing didn't withstand the scrutiny of U.S. District Judge James R. Spencer.
Prosecutors knew a gun was found under Jenkins' body, but they didn't tell Barnes' lawyers. Armed with that knowledge, and information that Jenkins routinely carried a handgun when opening the store, the defense could have presented a scenario of Barnes being confronted by a man with a gun.
Testimony about the gun being found under Jenkins' body came from one of the first police officers on the scene during the trial of Barnes' co-defendant in June 1986 - about two weeks before Barnes' trial. However, that information didn't make it to Barnes' defense team in time for his trial.
Instead, his lawyers learned about the gun's location in 1991 - five years later - when a paralegal interviewed a detective.
Hampton Commonwealth's Attorney Christopher Hutton ``clearly understood the importance of this evidence - otherwise he would not have withheld it,'' Barnes' lawyers wrote. ``The trial court and the Virginia Supreme Court were duped into believing that Mr. Barnes decided to shoot two helpless and defenseless victims, when in fact he probably was presented with a life-threatening situation. . . . Simply stated, Mr. Hutton purposely concealed that evidence because he believed it might help him win.''
When the issue reached Spencer's court, prosecutors argued that the evidence was not exculpatory because there was no reason to believe Barnes had seen the gun. But Spencer said Barnes didn't need to have seen the gun.
``I don't know how anybody could possibly say this is not exculpatory,'' Spencer said during the March 1993 hearing. ``It is clear that Hutton knew where the gun was found. That's crystal clear to everybody.''
Barnes' lawyers argued that prosecutors had produced the gun at trial but disclosed only that it was ``located inside Bon's Supermarket by police the night of the shooting.''
The judge ruled the disclosure inadequate, saying that Barnes' lawyer should not have had to interpret the location of the gun.
``When you say, `I know exactly where it is; I disclosed where it is generally, and therefore, everything is all right,' you see the other inference that can be drawn from that. `I know exactly where it is; I disclosed generally where it is. I'm hiding,' '' Spencer said.
Linda Curtis, chief deputy commonwealth's attorney in Hampton, who helped prosecute the case, declined to discuss the exculpatory evidence because the case is pending.
``The defendant denied being in the store at all,'' she said. ``He wasn't saying he shot in self-defense. He was saying he wasn't there at all.''
In Virginia, where prosecutors can argue for the death penalty based on vileness of the crime or an expectation of future dangerousness, presence of a gun can be key evidence.
``Certainly if the victim was armed at the time, that goes to how vile the crime was,'' said John O'Brien, a lawyer who represented Barnes. ``It was extremely egregious by the prosecution. They suppressed information that could have had bearing on whether he received the ultimate penalty of death.''
{KEYWORDS} DEATH ROW VIRGINIA
by CNB