The proof that Bennett Barbour was innocent of a 1978 rape was available in 2010, and he might have won wrongful imprisonment compensation from the state two years ago.
A bill that would award him $162,527 was filed Jan. 9 in time for this year’s General Assembly session and in the nick of time — he died the next day.
The bill was amended, and on Friday it passed the Senate, 37-2. If made law, “for the first time, of which I’m aware, the commonwealth will compensate the estate of a decedent,” said James Neale of Charlottesville, one of Barbour’s lawyers.
That, explained Neale, is because the case is so unusual.
In Friday’s vote, at least one senator made it clear a precedent was not being set for compensation to be awarded to estates of wrongfully imprisoned persons, because in this case Bennett was still alive when the bill was pending.
The next step, said Neale, is to find a sponsor in the House of Delegates.
While the DNA testing that cleared him of the crime was available in July 2010, Barbour did not learn about the proof he was innocent until January 2012, when a volunteer lawyer tracked him down.
The Virginia Department of Forensic Science sent registered letters attempting to notify Barbour that there had been DNA testing conducted in his cases. But if a letter ever reached Barbour, he wasn’t aware of it.
In any case, it was not until Barbour had a lawyer that Williamsburg authorities found the victim, informed her she had mistakenly identified Barbour, and arrested the implicated and previously convicted rapist James Glass, who is facing trial.
Had that begun in July 2010, he might been granted a writ of actual innocence by the Virginia Supreme Court in time to be compensated in the 2011 or 2012 General Assembly sessions while he was still alive, Neale said.
The bill, sponsored by state Sen. A. Donald McEachin, D-Henrico, requires that the estate waive any other claim there may be against the state in connection with his wrongful imprisonment.
Said Neale: “It’s important to understand they are not just voting on compensation but whether or not to invite a suit. Nobody wants to sue. We hope it does not happen.”