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Burden of Proof

Virginia Death Row Case: Re-Examining DNA Evidence

Aired September 11, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Derek Barnabei is scheduled for a lethal injection this week in Virginia for a 1993 rape and murder. Last week there was some evidence missing in the case. Now it's been found. But has it been tampered with?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Derek Rocco Barnabei has a date with death this Thursday. He was convicted in the 1993 rape and murder of a 17-year-old freshman at Old Dominion University. Barnabei claimed the he had consensual sex with the victim on the night of the murder and says another man raped and killed her.

ROGER COSSACK, CO-HOST: Now, Barnabei's lawyers are fighting for his life. They've successfully petitioned Virginia Governor Jim Gilmore to order tests on some of the evidence. They're also suing the state, claiming officials are responsible for alleged tampering of the evidence.

Joining us today from New York is criminal defense attorney Harlan Levy, an expert on DNA technology.

VAN SUSTEREN: And here in Washington, we're joined by former federal prosecutor Pam Stuart; Seth Tucker, who is attorney for Derek Barnabei; and Craig Barnabei, Derek Barnabei's.

In our back row, Brian Jones (ph), Garry Farris (ph) and Jim Fenton (ph).

COSSACK: And we are also expecting Republican presidential candidate George Bush to address prescription drugs for the elderly in the next few moments. When that event begins, we will bring it to you live.

Seth, I want to go right to you as the attorney for Derek Barnabei. What do you expect that this DNA will show?

SETH TUCKER, ATTORNEY FOR DEREK BARNABEI: Well, we expect that the DNA test is going to show the DNA of someone other than Derek Barnabei or the victim. Our theory is that, in her struggle to save her life, Ms. Wisnosky scratched her attacker, and that's the blood and hair or fibers that is under the finger nails.

VAN SUSTEREN: Seth, I want to talk -- let me back up for a second and talk about some of the physical evidence before we get into the DNA. The body was found floating in the water of the woman.

TUCKER: Yes.

VAN SUSTEREN: Where was this?

TUCKER: This was in Norfolk, Virginia, in the Lafayette River.

VAN SUSTEREN: And in the pleading that have you filed on behalf of Derek, you claim that has significance to help, perhaps, show that he was not the murderer. How is it relative?

TUCKER: The placement of the body?

VAN SUSTEREN: Yes, the placement of the body?

TUCKER: The body was found over a mile -- I'm sorry, the river is over a mile from the house, and the body obviously had to be transported there. When Derek's car was tested by the FBI, and completely turned over, it showed no blood, no hair, no fibers, nothing connecting that car to the crime. And so the prosecution has no theory for how it got there.

We also know that they never tested the cars of the other house mates -- this was a group house that he shared with other people -- so we think that those cars should have been tested, and that might have led them to the killer.

VAN SUSTEREN: Craig, why did your brother not surrender when he became a suspect right from the beginning? It took several months before he was actually picked up. He didn't surrender; why not?

CRAIG BARNABEI, BROTHER OF DEREK BARNABEI: Well, Derek was originally on his way home, September 22nd happens to be my mother's birthday, and he was on his way home to New Jersey to see my mother. While he was on his way home, he received a phone call from one of his house mates, Michael Bain, and said: Derek, Sarah is dead, they think you did it, don't come back. That is why he didn't come back. He panicked and he ran.

COSSACK: But Seth, it is true that your client -- as it has been described -- panicked and ran, and was living under an assumed name. And when he was eventually picked up. I mean, Isn't that -- lawyers say doesn't that -- isn't that indications of guilt?

TUCKER: No, we don't think so. He left town on a pre-planned trip, as Craig has mentioned. We have verified that, we have got the birth certificate to establish that. He says that he was notified on the road and at that point he panicked, He didn't leave town in a panic, he delayed trip, or detour.

He is not particularly sophisticated legally. He -- when he was told that he might be wanted for murder, he thought this was going to be resolved, and when the coast is clear I will come back. But I don't need to be here for them to find the real killer.

VAN SUSTEREN: Seth, one of the things that I have read in the course of preparing for the show was that the location of the decedent's body, this young woman's body was such that between the time that your client allegedly had seen her, and the time that the body was found, is that it was suspected the body would have been moved farther out to sea. Is that one of the things that you allege in your efforts to save your client's life?

TUCKER: That has been one of the things that we have raised. It is not one of the main points that we are following, but she was placed in the river. And according to police testimony, she was found a very short distance from where the body was put in. We don't think that is possible. We think the body must have been put in somewhere else. But it is definitely one of the unanswered questions in this case.

VAN SUSTEREN: All right, well, let's go to the telephone. We have on the phone, Arnoldo Valle-Levinson, who is an oceanographer.

Arnoldo, this piece of evidence, or this information about where the body was placed, where it was -- how soon it was found after it was allegedly placed in the water. Does it have significance to you?

ARNOLDO VALLE-LEVINSON, OCEANOGRAPHER: It does. I think it is highly unlikely that a floatable originated at its end-point unless it began floating at the time that it was found.

VAN SUSTEREN: So, under your theory and you've looked into this case, I know that, is that had Derek placed the body in the water at the time that the police claim, it would have moved farther down stream or, as I say, farther out to sea so to speak; is that right?

VALLE-LEVINSON: Correct, it would have moved away from the -- that is downstream of the Lafayette River that is towards the sea. Not long distance because of the conditions of tides and winds that prevailed during that day.

VAN SUSTEREN: How certain are you?

VALLE-LEVINSON: I just -- all I can say is that it is likely that the trajectory originated to the southwest of the end point. But that is all I can say about that incident.

COSSACK: Arnoldo, in terms of your abilities to make predictions regarding where the body should be and would be, what are you basing this on?

VALLE-LEVINSON: It is based on how a floatable would be transported in the water, given the tides and wind conditions that prevail under a given day.

COSSACK: But you have never done a comparison study or anything like that. This is just a prediction based on what you believe the tides were and what would have happened; is that right? VALLE-LEVINSON: It is based on what the tides and the winds were on that day, and what theoretically the winds and the tides would cause the transport that the tides and the winds would cause.

COSSACK: OK, let's take a break.

Up next, as the Barnabei case began to garner more media attention, some evidence disappeared, and then it reappeared. What happened to it? And can forensic technology determine if tampering was involved? Stay with us.

(BEGIN LEGAL BRIEF)

Wen Ho Lee has agreed to plead guilty today on one count of mishandling classified information, government sources said.

The government agreed to drop the other 58 charges for a guilty plea to the one count and cooperation with an ongoing FBI probe.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Convicted murderer Derek Barnabei is scheduled to be executed in Virginia this Thursday, but he's convinced the governor to order some retesting of the evidence in his case. Governor Jim Gilmore has ordered testing on some fingernail clippings which were found on the victim.

Harlan, there seems to be a problem, at least a question, about the integrity of this evidence. Initially, it was missing and then it was found. Could this evidence have been tampered with? and if it was, would DNA testing be able to detect that?

HARLAN LEVY, DNA EXPERT: Roger, what DNA testing will tell you is whether the blood on the fingernail clippings is consistent with this convict or whether it is consistent with someone else. DNA in and of itself won't tell you whether or not there's been tampering.

On the other hand, through common sense and through experts looking at this evidence, looking at the fingernail clippings, looking at the seals, I imagine that the experts should be able to look at this and reach certain conclusions as to whether or not there's been tampering.

VAN SUSTEREN: Harlan, the key issue in this case, and I understand obviously Seth is here and can correct me if I'm wrong, is that Derek admits that there was sex. He claims it was consensual. What he says is then someone else then came in, raped her and murdered her, and that there is some DNA that a vaginal swab suggests that another person who had sex with her.

If you have a mixture of DNA, can it be separated so you can determine? or is that contamination?

LEVY: All the contamination means, Greta, is DNA where it's not supposed to be.

VAN SUSTEREN: Can you separate out two people's DNA that's been mixed together?

LEVY: You can see that there is the DNA there of two people, and you can reach that judgment, yes.

VAN SUSTEREN: Pam, how important would that be to you as the prosecutor in the case if you learned, under the facts of this case, that there was DNA present from another man?

PAM STUART, FORMER FEDERAL PROSECUTOR: Well, if I knew that the DNA had been tested to see whether or not Ms. Wisnosky's DNA from her vaginal secretions was part of that swab, then I wouldn't be worried about it at all. Otherwise, it raises a question.

But apparently, all the testing that was done in this case is consistent with the guilt of Mr. Barnabei.

COSSACK: Joining us now by telephone is Joshua Marquis.

Joshua, there is obviously a great debate about testing -- DNA testing, and in fact, even a movement to have DNA testing performed almost in every case. Your feelings on this, and I understand that you are somewhat against this?

JOSHUA MARQUIS, NATIONAL DISTRICT ATTORNEYS' ASSOCIATION: Speaking as a member of the National District Attorneys' Association, we support DNA testing in any case, including post-conviction, if there is a genuine question as to guilt or innocence.

What we are concerned about are these O.J. Simpson-like orchestrations, which frankly this looks like it might be part of, where the DNA test is not going to answer the important question of whether the person did it or not.

VAN SUSTEREN: But Joshua, what's the big deal?

MARQUIS: Why not give everybody a DNA test?

VAN SUSTEREN: Why not do it? If it turns out that it's just his DNA, so be it. It leaves every last bit of doubt we might have. Why not do it?

MARQUIS: Like with Ricky McGinn, whose DNA showed with one quadrillion of a chance.

VAN SUSTEREN: That's right, as a society, we don't have to worry.

MARQUIS: Unfortunately, Greta, we don't have unlimited resource.

VAN SUSTEREN: Why not take the worry away?

MARQUIS: Because we don't have unlimited resource. The best way to make sure that guilty people don't get convicted is to do pre- conviction DNA testing. There is 350,000 samples in the United States.

VAN SUSTEREN: But for those that have not been pre-tested. That is the problem. Harlan, do you want to get in on this?

LEVY: Yeah, yeah, there is no question that the better course is to test the DNA before the trial. That's the better way to go. But here, where there may be DNA on these fingernail scrapings, on these fingernail clips that could exonerate this man, I don't think there is any argument not to go ahead and do it. And in fact, the governor has approved of that.

COSSACK: Josh, let me just jump in a second. The problem is, and I well understand what you are saying, but the problem is, how do you decide when there is absolutely no chance that DNA is going to make any difference? how do you decide when it's not a good-faith attempt?

And I understand that everybody is going to want some DNA testing, but perhaps, until you get to a situation where you have universal pre-trial DNA testing, aren't you just going to have to deal with these, like they're doing, and give DNA tests?

MARQUIS: Well, no, I think you have to, at some point, make a determination of whether or not. In this case, Governor Gibson has decided that it's worth having the DNA tested, and I certainly respect that decision. If there is any question that it might prove that they are guilty or not.

But frankly, as you all know as attorneys, if someone is facing execution, or even facing a long prison term, they will do anything to postpone the inevitable, including things that they know are going to show that they are guilty.

VAN SUSTEREN: But I don't think, Joshua, necessarily, that we do this DNA testing so much for the defendants sometimes, but also so that we, as a society, are certain that we are doing the right thing.

Let me turn to you for a second, Craig. Craig, have you talked to your brother about what is going to happen? I mean, that he's about to be executed?

BARNABEI: Yes.

VAN SUSTEREN: Tell me about your brother. How is your brother reacting to this?

BARNABEI: Well, he is bearing us as well as could be expected, I guess. He's -- faced with his own mortality right now. He's still fighting. I mean, he knows he is innocent. He didn't accept a plea bargain during the trial because he said: This is America. How could I be convicted if I'm not guilty and they'll get to the bottom of it.

So, apparently, his faith in the judicial system was there.

VAN SUSTEREN: And let me ask you this, suppose that they do the DNA testing, and suppose that it does come up that it's just your brother's DNA, what does that mean to you?

BARNABEI: That means that they didn't do enough testing, they are not testing the vaginal swabs.

VAN SUSTEREN: Suppose they do the vaginal testing swab, and they find out that it is only your brother, that your brother for whatever reason has lied; now what?

BARNABEI: Well, I know that is not possible because during the trial transcript, Mr. Presswallace (ph) said there was presence of another genetic material on the vaginal swab, but they never tested it.

VAN SUSTEREN: Is that right, Seth?

TUCKER: I don't know about that. But I do know that experts have looked and said that there were anomalous results that were consistent with a second person's DNA, and we have asked for those to be retested.

The fingernails were never tested. The vaginal swabs, we have asked for retesting, and so far the governor has not allowed it because they have been compromised. The seals were broken on these, and that's one of the things that we are in court about now is to look who from the government of Virginia may have tampered with this evidence. All eyes are on the state because all of the evidence points in that direction.

VAN SUSTEREN: Pam, what do you do if you were the prosecutor in this case at this point?

STUART: Well, for one thing, the vaginal swabs were tested, So obviously they were taken out of their containers at one point. But at this point, as a prosecutor, I would await the results of the testings of the fingernail clippings, and I would then go forward based on whatever the results were.

But I would expect, given what I have read about the case, that they would be consistent the defendant.

COSSACK: Seth, are you concerned at all with the trial that your client had initially? I know he did not take the stand. Obviously, as a lawyer, and I agree that you cannot hold that against him. But it seems in this case, there may have been a reason for him to take the stand. How do you feel about his trial initially?

TUCKER: We think the trial was unfair. And one of the claims that we have alleged in ineffective assistance of counsel. And in fact, the district court held that his trial counsel's performance was unreasonable.

So far, we've not been able turn that into a finding of full- fledged ineffective assistance of counsel. But that issue is before the Supreme Court right now in this case.

VAN SUSTEREN: We're going to take a break. When we come back, the legal aftershocks of DNA technology. Is it the miracle evidence? Stay with us.

(BEGIN Q&A)

Q: Why are prison inmates in Louisiana losing the right to have a typewriter?

A: To improve prison security, according to corrections officials. Relatives of inmates claim it's a move to keep prisoners from writing letters to the media.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: DNA technology has forced the courts and states to reexamine dozens of cases, and not all of those cases involve prisoners currently on death row. A unique case in Georgia involves the testing of evidence in a case in which the man convicted of the crime was already executed four years ago.

Harlan, is DNA the miracle evidence?

LEVY: Yes it is, Greta. DNA is a modern-day truth machine. It can tell you where the blood came from, where all kinds of biological material came from. The court then has to decide, the jury has to decide what that means, but it can tell us things that we never knew before.

VAN SUSTEREN: Is -- what do you make -- and maybe I'm wrong about this, but I've seen an awful lot of prosecutors resisting post- conviction testing. Just to make us certain one way or the other, you say it can be a miracle evidence, what do you -- am I wrong? Are prosecutors resisting this?

LEVY: I think that a lot of prosecutors do resist it. I think that they'd like to stick with the finality that they have when they have a conviction. All of us like to believe that our initial judgments were correct. I think that's wrong, though. I think that there have to be standards that are developed that determine when it's appropriate and when it's not appropriate. And when it is appropriate, you don't want to execute someone who's innocent, you don't want to keep someone in prison who's innocent.

COSSACK: Seth, how long is it going to take for the results to be known of the testing that you've requested?

TUCKER: Well, we haven't heard anything from the state directly, but we know that they haven't stayed the execution. And my understanding is that it can be done in a few days. So it could be any day now, and certainly it's got to come back before Thursday night.

COSSACK: Do you expect a stay of the execution? TUCKER: We still have our request pending. It's up to the governor of Virginia. And we've done all we can to try to get that stay.

VAN SUSTEREN: Craig, the family has had some contact with the people from the Vatican. What have you done -- what has happened? There's been some requests from the Vatican to stay the execution?

BARNABEI: We've asked the pope to intercede. I mean, he's come out publicly against the death penalty, and my mother's met with him a couple of times.

VAN SUSTEREN: Actually met with the pope?

BARNABEI: Well, actually, his secretary. The pope was too ill to meet with her. But the pope had fully -- his assistant, I'm sorry -- because he was too ill to see her. But he has written letters and I believe the bishop of Virginia in Norfolk is planning to intercede as well.

VAN SUSTEREN: Pam, what do you make of this? You know, we have first the court at trial, then we go to the governor and try to seek something. We even go, you know, as far as -- I mean, to go to the Vatican for help. What do you make of it? Is the law changing a little bit, or you just pull out all the stops when it's the ultimate?

STUART: No, the law isn't changing, but obviously Mr. Barnabei is getting very, very good representation. And I applaud his family for taking the steps necessary to pursue every avenue, but we'll have to await the outcome of the tests to see whether or not that really helps.

COSSACK: Harlan, as we know, this execution is set for Thursday. It seems to me that, without a stay, can testing be done that quickly that there'll be a final result by Thursday one way or the other?

LEVY: Roger, the form of DNA testing that's predominant today can be done in 24 hours, so I think that we will have a result by tomorrow, they might have a result today. I think that the question of tampering, though, is going to be an inquiry that will take longer, and that, in my mind, makes the advisability of an execution on Thursday -- even if the evidence points to this gentleman -- makes that highly questionable.

VAN SUSTEREN: Seth, let me ask you a two-part question. First is how much does it cost to do DNA testing in general? And secondly, even if you -- a defendant has the money, can you get the material from the prosecution in order to test, or do you have to go through hoops in court?

TUCKER: You have to go through hoops. You can't automatically get the material. That's something you can request, but it's up to the court whether they'll allow it. And many prosecutors will allow it and we're frustrated that, in Virginia, we've had such a hard time getting this. On your first question about the cost, the costs has come down dramatically in the last few years. Now it costs $5,000 or less per test. In this case, there are supporters of Mr. Barnabei who would willingly pay the money, so it's not an issue. But even in the larger cases, in the average case, it's just not that expensive.

VAN SUSTEREN: Let me ask you, what are you going to say to your client? I mean, there's sort of the -- suppose that he does get this testing and suppose the DNA test comes out unfavorably to your client. What does a lawyer -- what do you say to your client? What are you going to say to him?

TUCKER: Well, in this case, we think that there's evidence that it may have been tampered with. And so I'm not going to go to him and say, you were telling lies the whole time or something like that, because we have real reason to think that evidence may have been planted by government officials. We've asked to see the container. We know that the outer containers were tampered with. They were opened when they shouldn't have been. The government spirited away the container, they've already opened it, so we have no chance now to confirm for ourselves.

So we would have doubts even if it came back with Derek's blood.

COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for watching.

This afternoon, I'll be hosting CNN's "TALKBACK LIVE." Today's topic: Did coach Bob Knight deserve to be booted out of Indiana University? Tune in and log on at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And I second it. Don't miss "TALKBACK LIVE" with Roger, but we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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