THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, October 12, 1996 TAG: 9610120274
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY LAURA LaFAY, STAFF WRITER
LENGTH: 142 lines
A Virginia Beach man who has spent seven years in prison for rape and robbery could not have committed the crimes, according to DNA tests conducted last month by the state's Division of Forensic Science.
Troy Lynn Webb, 29, serving a 47-year sentence at Keene Mountain Correctional Center in Oakwood, has petitioned Gov. George F. Allen for clemency based on the test results. Virginia Beach Commonwealth's Attorney Robert Humphreys, whose office prosecuted Webb in 1989, has joined the request.
``I could hardly stand up and ask a jury to convict based on DNA evidence if I didn't also feel it could exonerate someone,'' Humphreys said in an interview this week.
Allen, who received the petition Sept. 20, is ``conducting an extensive review'' of Webb's case, according to his spokesman, Ken Stroupe.
``There is no time line,'' said Stroupe. ``The review will take as long as is necessary to thoroughly examine all the facts as they have been presented. At such time when the governor feels he has had adequate time to conduct a thorough review, he will make a decision. There's an obligation to make sure justice is served, but also an obligation to the citizens to ensure their safety.''
In 1994, Allen spent more than four months reviewing a clemency petition on behalf of Edward Honaker, a Nelson County man exonerated of rape by DNA evidence, before freeing Honaker.
At one point during his review of the Honaker case, Allen announced that the state police had turned up new evidence: the victim had a ``secret lover.'' So even though DNA tests on a vaginal swab had excluded both Honaker and the victim's boyfriend, Allen contended, the presence of the secret lover cast doubt on Honaker's innocence because sperm from the third man could have ``masked'' Honaker's sperm.
Experts disputed this theory, and after DNA tests excluded the secret lover, Allen granted clemency.
In the Webb case, the jury convicted on the basis of serology tests - the most sophisticated tests available at the time - indicating that analysis of a semen stain from the victim's underwear did not rule out Webb.
Analysis of the semen stain revealed Type A blood. Although Webb's blood type is not expressed in his semen, an expert testified at his trial, the semen could have come from the victim's boyfriend and Webb could not be ruled out as the rapist.
``At the time of the Troy Webb case, we were performing conventional serological testing . . .,'' said Dr. Paul B. Ferrara, director of the state's Division of Forensic Science. ``Due to the limitations of that technology, we could not eliminate Webb as a possible contributor. . . . It amounted only to circumstantial evidence.''
In addition to the serology evidence, the victim in the case - who is white - identified Webb as her attacker in separate photo line-ups of black suspects presented to her by detectives and in court.
``Just as we know that mistaken eyewitness identification is a major cause of convicting the innocent, cross-racial identification occurs with particular frequency,'' Webb's lawyer, Barry Scheck, wrote in his petition to Allen.
Scheck heads the Innocence Project at the Benjamin N. Cardozo School of Law in New York. The organization works through DNA testing to free people who have been wrongfully convicted of crimes.
Humphreys, whose office informed the victim of the new test results, said her response was, ``Something along the lines of, `Well, if it wasn't him, it was someone who looked just like him.' ''
Webb's face appeared in police photo lineups, Humphreys said, because of a previous conviction for the 1985 gang rape of a 14-year-old. In that case, court records show, Webb, then 17, was one of five young men who attacked the girl at Webb's home.
According to notes taken at Webb's gang rape trial by Circuit Judge Edward W. Hanson Jr., Webb was present during the crime but ``did not rape the girl - (did) not touch her at all.'' Hanson sentenced Webb to five years and suspended the sentence on the condition that he spend nine months in jail and undergo supervised probation. Webb was still on probation at the time of his arrest for the 1988 crime.
He was tried in 1989 on charges of abduction with intent to defile, rape, robbery and use of a gun. The victim, a 25-year-old waitress at Streamers in Virginia Beach, testified that she was attacked in the parking lot of her apartment complex when she returned from work about 3 a.m. Jan. 24, 1988.
The victim described her attacker to police as a short black man, 19 to 22 years old, with a slender build. A few days after the rape, she said, she saw a ``black guy'' at Streamers and asked her boss to call the police because something about him ``bothered'' her.
``I was still upset to where any black man I seen I was going to think it was him,'' she testified.
The victim identified Webb in a photo line-up 17 days after the rape. The next day, she picked him out again. Almost a year later, she pointed to him in court.
Webb's court-appointed lawyer, Virginia Beach public defender Peter Legler, presented no evidence in his defense.
A juror contacted Friday said she was ``very surprised'' to hear of Webb's DNA report.
``The strange thing about that trial was that the defense presented no evidence,'' said the juror, who asked not to be identified. ``It made me think he was guilty, that he just couldn't present a case for himself. That is how most of the jurors felt.''
Webb appealed his case to the state Court of Appeals and the Virginia Supreme Court. After both courts turned him down, his family contacted The Innocence Project.
During the summer, project lawyers called Pamela Albert, who prosecuted Webb, and asked her to arrange for DNA tests. Albert complied. On Sept. 7, a state forensic scientist issued a report, based on DNA testing that was unavailable at the time of Webb's trial, eliminating Webb as the rapist.
Webb's is the third documented Virginia Beach case in recent years in which the wrong person was convicted of a crime.
In 1987, Craig Bell, 25, was convicted of killing his girlfriend and sentenced to 20 years in prison. One week after Bell was sentenced, another man - Jesse Calvin Smith - confessed to the crime. Bell was released after serving two and a half months in the Virginia Beach jail.
In 1994, John S. Tingle Jr. was convicted of abduction and assault and sentenced to 10 years for attacking a woman near the Oceanfront. He was freed in 1994 after the victim told the judge she was no longer sure he had been her attacker.
In an interview this week, Humphreys spoke philosophically of the justice system.
``I think there is a tendency on the part of the average person to view the system as infallible,'' he said. ``But nothing created by human beings is infallible.''
``It's not fun to discover you've convicted the wrong person. But I don't lose any sleep over it because, frankly, it's not our job to guarantee guilt or innocence. It's our job to present the evidence and see if we can find the truth.''
In addition to Honaker, DNA technology has exonerated two other Virginia prisoners since 1989. They are:
David Vasquez, a retarded Arlington County man who pleaded guilty to the 1984 murder of an Arlington woman. DNA tests eventually exonerated Vasquez and implicated Timothy Spencer, an Arlington man who was convicted of several rape/murders in Arlington and Richmond. Vasquez was released in 1989. Spencer was executed for the crime in 1994.
Walter Synder, an Alexandria man convicted in 1986 for the rape, sodomy and burglary of a neighbor. The victim identified Snyder and serology tests showed he had the same blood type as her attacker. Through the Innocence Project, Snyder's family arranged DNA tests which exonerated him. The prosecutor in the case joined in his request for a pardon, and Snyder was released in 1994. MEMO: Staff writer Lynn Waltz contributed to this report. ILLUSTRATION: [Color Photo]
Troy L. Webb
KEYWORDS: DNA INNOCENCE PROJECT by CNB