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Derek Barnabei still looks like a fraternity boy after five years on Virginia’s death row. He wears a Fila hat backwards and Nike sneakers that haven’t lost the new sheen. The outfit separates him from the other dead men walking, in their baby blue uniforms at Sussex I State Prison in Waverly. He steps off the row into the rain. He sports black shades, like a kid hanging out on Atlantic City’s boardwalk. It is rare for him to be outside. At the visitor center, Barnabei, 33, kneels down in the booth without waiting for instructions. He slips his shackled hands through a hole in the door for the guard to uncuff him. They never speak. “Sixty minutes,” the guard says through an armored glass window. Barnabei changes into his regular glasses. He sits and picks up the phone. There’s no banging on the table demanding justice, no talk of salvation or miracles. There’s a hint of a smile. He tells his story in a faded New Jersey accent. “I’m innocent,” says Barnabei, who is scheduled to die on Sept. 14. It has been his refrain for the past five years. Until now, it stirred no one. But last month, Gov. James Gilmore ordered DNA re-tested in the 18-year-old murder case of Earl Washington, a first in Virginia. That also encouraged a call for new DNA tests for Barnabei, who was convicted of raping and beating to death 17-year-old Sara Wisnosky in 1993. And Barnabei isn’t alone. Condemned murderer Russel Burkett, slated for execution in August, is also hoping for a DNA test. But Barnabei’s crew of international supporters, cobbled together from family outreach to the Italian-American community and a Web site dedicated to his cause, has brought him attention. The Pope has requested that Gilmore block the execution. Fabrizio Vigna, an Italian legislator, has done the same, as has Nicole Fontaine, president of the European Union Parliament. And New York real estate baron Tony DiPiazza – who heard Barnabei’s appellate attorney, Covington & Burling partner Seth Tucker, on an Italian-American radio show – is offering $50,000 for new information in the case. “I don’t want to look back and say I didn’t do anything about it to stop the injustice,” DiPiazza says. On July 28, the governor’s staff met with Tucker for a preliminary meeting to discuss Barnabei’s request to examine untested DNA evidence and to retest, using new technology, biological evidence used to convict him. Barnabei rolls his eyes and shakes his head. “I’ve been asking for five years,” he says. But prosecutors oppose new exploration of the case, citing the backlog of DNA testing in current cases and the need for justice to be carried out swiftly. “The courts have heard Mr. Barnabei’s case and agree that new evidence would not change anybody’s mind,” says David Botkins, spokesman for Virginia Attorney General Mark Earley. “His guilt is not in question.” “I knew Derek shouldn’t have gone down to Virginia,” says Barnabei’s mother, Jane. “I had a feeling.” Barnabei, a draftsman by trade, arrived in Norfolk in the summer of 1995 to draw plans for ship kitchens, his mother says. Barnabei says he was hoping to make enough to pay off creditors back home in New Jersey. When he arrived, he contacted the Old Dominion chapter of his old fraternity, Tau Kappa Epsilon, to find temporary lodgings. Once a brother, always a brother, he thought. Barnabei rented a room in a group house with two other frat brothers. It turned out the chapter was in danger of losing its charter because membership was low, and Barnabei helped organize parties over the summer to find new candidates. “It was the biggest pledge class they ever had,” he says. He met Wisnosky, sitting with a friend in front of her dormitory, in early September. Within a couple of weeks, they were sleeping together. On Sept. 22, Barnabei and a fraternity brother picked up Wisnosky around 4 p.m. She left a note for her roommate: “Nicki, I’m leaving and never coming back. Just kidding. I’ll be at Derek’s phone number. I’ll be home later.” They went back to Barnabei’s house, where they had sex. Around 8 p.m., they watched the movie Single White Female. Around 9:30 p.m., Barnabei and a fraternity brother left for the frat house to run a pledge meeting. Wisnosky and Mike Bain, who lived with Barnabei, stayed behind to watch the movie while others straggled in and out. According to trial testimony by Bain and another prosecution witness, Barnabei returned home between midnight and 12:15. The witnesses said they were awakened at about 12:30; one said it was because Barnabei’s stereo was blaring “Head Like a Hole” by Nine Inch Nails. Annoyed by the noise, the roommates testified that they planned to shoot up Barnabei’s room with paint-ball guns. Charles Griffith, the commonwealth attorney who prosecuted the case, contended that the loud music was masking Barnabei’s actions as he raped Wisnosky and smashed her head in with a ball peen hammer, which was never found. Investigators found Barnabei’s semen on swabs taken from Wisnosky and her blood on Barnabei’s bed and wall. Griffith, now a Norfolk Circuit Court judge, declined to comment for this article. The jury heard from four other witnesses who testified about the time frame. One said he hung out with Barnabei and Wisnosky, who was wearing a bathrobe and smoking a cigarette, until about 1:45 a.m. in Barnabei’s room. Barnabei, who didn’t testify at trial, says that when he returned from the pledge meeting, his roommates were in his room cleaning up what looked like red paint from the floor. “They said, ‘Some pledges came by with paint-ball guns,’ shot up my room, and took off,” Barnabei says. ” ‘You can still catch them.’ “ He says he stumbled out of his house. He didn’t find the pledges, so he returned home and slept on the couch because his sheets were gone. He now says he believes that at least two of his roommates, who testified against him, raped and murdered Wisnosky. The next day, Barnabei says he left for New Jersey for his mother’s birthday. An hour into the trip, he received a page from a fraternity brother. Wisnosky was dead and he was the suspect. The local police chief notified his mother. “Please just turn yourself in,” she pleaded. He didn’t. Still driving the same car and using his father’s name, Serafino, Barnabei was picked up in Ohio by the FBI a couple of months later. “I thought that if I laid low, they’d eventually figure out it wasn’t me,” he says. About the time Barnabei headed for New Jersey, Wisnosky’s body was found floating in the Lafayette River by a woman walking her dog. One of the officers tied a rope around the body to keep it from drifting out to sea. The police say that the body was dumped at that spot. However, oceanographer Arnaldo Valle-Levinson of Old Dominion University wrote as part of Barnabei’s habeas corpus petition that it would be impossible for the body to have floated in that location for 12 to 15 hours. It would have floated at least a quarter of a mile to the north by 6 p.m., when it was found, he said. The Norfolk police traced Wisnosky to Barnabei’s house with the help of the note she left. Norfolk police investigator E.L. Martin collected 18 samples of possible DNA material. Five were subjected to DNA tests. Investigators also collected items that may have residual DNA: a wash cloth, an afghan, some carpet, and a towel – all logged into evidence, none tested. Blood and tissue, trapped underneath the victim’s fingernails, were never tested. “It could contain DNA from Sara’s true murderer,” Tucker says. Forensic consultant Paul Kish, who reviewed trial transcripts, scene reports, photographs, and lab reports as part of Barnabei’s post-conviction defense, says: “Of all the capital murder cases I have worked on over the past 10 years, I can only recall one with as little evidence as this linking the defendant to the murder itself.” Knowing when to zig and when to zag is a tough call, says James Brocolletti, Barnabei’s lead trial attorney. “You hesitate to push for more DNA testing than the prosecution does because it may wind up coming back to haunt you,” he says. Brocolletti has filed an affidavit saying he was not prepared to properly challenge the forensic evidence in the case. Tucker says Brocolletti could have argued more effectively that the sexual encounter was consensual – not a rape – leaving no opportunity for the prosecution to seek the death penalty. There are other questions with the tests. According to Ronald Ostrowski, a professor of biology at the University of North Carolina, the DNA test on the swabs from Wisnosky “necessarily indicates the presence of the DNA of more than one person.” Ostrowski had been contacted by the defense but not called at trial. In Brocolletti’s affidavit, he says he was aware of Ostrowski’s analysis, which also found that Wisnosky’s condition “was consistent with explanations other than forced nonconsensual sex.” But Brocolletti says the trial court denied him funding to pay for the doctor’s testimony. The Virginia Supreme Court affirmed Barnabei’s verdict and sentence in 1996. However, the U.S. District Court for the Eastern District of Virginia and the U.S. Court of Appeals for the 4th Circuit both ruled that Brocolletti’s services fell below the constitutional minimum for effective counsel but that the error was harmless. “Barnabei was not prejudiced by trial counsel’s performance in contesting the Commonwealth’s forensic and DNA evidence of rape,” the 4th Circuit wrote. Just before the sentencing phase of his murder trial, Barnabei asked an inmate to cut his hair. He says the guy screwed it up and had to completely shave his head. It was a bad omen, Brocolletti says. That day, the prosecution called Barnabei’s ex-wife, who had skipped town with their son years earlier. She testified that Barnabei had been abusive to her and their child. Barnabei was enraged at the testimony. He banged on the table, screaming, “I didn’t kill Sara. I didn’t kill her.” Eight bailiffs removed him from the room. “All the jury could see was a guy bashing this girl’s head in,” Brocolletti says. One juror, Mary Rice, says she was never convinced that Barnabei raped Wisnosky, but went along with the others because they said the prosecutors had the necessary evidence. Told of the expert testimony gathered by Barnabei’s lawyers since the trial, she says, “If there was evidence that could have been presented, it should have been shown to us.” But another juror, Wesley Seymour of Norfolk, is not moved by what he didn’t know. “If he was innocent, why didn’t the defense put on a witness to tell us where he was or what he was doing while that girl was being killed?” Seymour says. The Norfolk resident laughed when he heard that Barnabei’s supporters are offering a reward for information about the real killer. “Maybe they should have presented us with the other DNA evidence, but I don’t know if that would change my mind,” Seymour says. “The DNA is what puts him at the scene of the crime.” At Sussex, Barnabei’s smile fades when the guard says, “Time’s up.” He kneels down, placing his hand back in the hole for the guard to place the cuffs on him. “I can get calls,” he says, looking at the ground as he obeys the guard’s prompts. “Call my mom and she’ll call me using three-way – .” His voice trails off. He waves as he walks through the door. He doesn’t look back. At the last minute, he changes back to his sunglasses. The guard shackles his hands to his side for the walk back to death row.

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