From the Richmond Times-Dispatch:
Bennett Barbour, reed-thin from cancer and numb from morphine, was looking forward to voting for the first time next month.
On Wednesday, he proudly displayed a voter card issued Sept. 14. Barbour had planned to take it with him to his Charles City County polling place after his recent exoneration for a wrongful 1978 rape conviction.
He fears he might die before he is compensated for his wrongful imprisonment, but he was confident that he would be able to vote Nov. 6.
“It’s scary but it’s exciting because that was something I wanted to do. … That’s the way my father raised me,” Barbour said Wednesday.
But Barbour learned last week that he is not eligible to vote. That’s because although he was fully exonerated of rape, he still has several less-serious felony convictions on his record. When his lawyers learned Wednesday that Barbour had registered, they advised him not to vote.
“I feel terrible about it because I had never voted and that was my right and duty to vote, and now I can’t do it,” he said.
In May, Barbour won the third writ of actual innocence based on DNA evidence ever granted by the Virginia Supreme Court. But life since then has not been easy, and there have been some disappointments.
His health problems have worsened, he has chronic pain and he has learned that any compensation for his wrongful imprisonment may be limited under a state formula and that it may take longer to obtain than he has time left.
And now, he has learned he cannot vote.
Matthew Engle, one of Barbour’s lawyers, said, “He just made a mistake. He thought that when the Supreme Court granted his writ that he was no longer a convicted felon. He misunderstood.”
In 1978, the same year he was convicted of rape, Barbour pleaded guilty to unrelated charges of burglary and grand larceny. Those felonies remain on his record along with driving offenses committed since his release from prison.
Virginia is one of just 11 states where voting rights are not automatically restored to felons at some point after serving sentences. In Virginia, only the governor can restore the right for felons.
Barbour questioned why he could get a voter card if he was not eligible. He does not recall the details but says he filled it out accurately at the time, believing he was no longer a felon.
“They sent me this paper, right? I didn’t ask for no paper. I didn’t go out seeking for no request form to register to vote, right? They just volunteered to send me the paper.”
Barbour said he does not recall who mailed him the application.
The State Board of Elections confirms that third parties have been mailing legitimate voter registration applications that can be used by people voting for the first time or for those with new addresses.
The form asks if the applicant ever has been convicted of a felony and, if so, if their voting rights have been restored. Applications are matched against a current list of felons to determine if an applicant is ineligible. Voting officials have a list of felons updated monthly against which voting applicants or people currently registered to vote and later convicted of a felony are compared.
It is unclear how Barbour could be issued a card, but Catrinia Barneycastle, the registrar for Charles City County, explained that when the Virginia Election Registration Information System checks the list of felons against voter applicants, a flag may not be raised if one letter in a name or one digit in a Social Security number is off.
The use of nicknames or aliases, leaving off or adding “Jr.,” “III” or “IV” also could lead to wrong results. And if a person has more than one conviction, the records could be under slightly different names, she said.
“Some people really don’t know if they’ve been convicted of a felony or if it was a misdemeanor,” she said.
“I am just so sorry to hear that this guy had to go through all that,” she said of Barbour.
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Engle, with the Innocence Project Clinic at the University of Virginia School of Law, said he would like to know who sent the voter registration application to Barbour. He added that Barbour will file a cancellation form to have his name removed from rolls.
They may ask Gov. Bob McDonnell to restore Barbour’s voting rights, though according to the Board of Elections the deadline has passed to register to vote in the Nov. 6 election.
McDonnell has streamlined the process for restoring voting rights, thus far restoring the right to 4,150 people. He has said it is a goal of his administration to restore voting rights to people who have paid their debt to society and are now productive citizens.
A spokesman for the governor’s office said Friday that it is too late for Barbour to be able to vote Nov. 6. However, “We would encourage him to submit a (restoration of rights) application to be reviewed.”
Barbour was convicted in April 1978 of the Feb. 7, 1978, rape of a 19-year-old College of William and Mary student who mistakenly identified him as her attacker. The crime occurred long before DNA testing was available as a crime-fighting tool.
Two years ago, testing by the Virginia Department of Forensic Science project failed to identify Barbour’s DNA in semen left by the assailant and implicated a convicted rapist who will be tried for the rape in December.
The Attorney General’s Office joined in the request to clear Barbour of the rape, noting that in addition to the DNA, Barbour had an alibi, available forensic evidence at the time did not implicate him and that police had some concern he was innocent.
Barbour served 4½ years in prison before his release in 1982 and may be eligible for a small amount of compensation for his wrongful imprisonment under a formula set by the Virginia General Assembly.
According to the Department of Corrections, he served his time for the unrelated burglary charges first, so he served less than a year for the rape conviction. (Records also show an 11-month imprisonment in 2004-2005 for hit-and-run and habitual traffic offending.)
“He can go through the General Assembly and get very little under the compensation scheme because of the way that they’re calculating the time served,” said Engle, who added that a civil suit may be a better hope for compensation.
“We’ve been consulting with a couple of law firms who are interested in the case, and we’re to give them all the information they need so they can decide whether they take it,” he said.
“This has to move — he’s sick and he wants to make sure something happens before he gets any worse. … It just takes some time to get somebody competent to take the case,” Engle said.
In 1978, Barbour was 22, had a job in Williamsburg and a happy, if modest, life. “I’d just gotten married, we was going to have our first kid,” he said.
Records show the rape victim identified him from mug shots on Feb. 14, 1978.
Last week, Barbour said, “Valentine’s Day sitting at home, they came down here and arrested me for rape. … I know I had a burglary charge three months prior to that. Why would I got out and do something that stupid?”
Earlier this year, Barbour said he was arrested before he could have dinner with his wife to celebrate the holiday. However, the celebration must have occurred a day late, on the 15th, because Barbour was not at home Valentine’s Day.
According to the Virginia Attorney General’s Office, records show when police went to arrest Barbour on Feb. 14 his father told them he was not there. He was arrested on the 15th after his return.
Barbour’s marriage ended after the rape conviction. He has a daughter he stays in touch with and three grandchildren he dotes on.
“I was working, doing pretty good for myself,” Barbour said of the time before his arrest. But the rape charge, he said, “that killed everything right there.”
These days, he is in a great deal of pain from cancer, he said. Never a large man, he says he now weighs 100 pounds and that a good day is when he can get around a bit on his feet instead of in his wheelchair.
He gets nursing attention at home, he said. “The doctors can’t do no more. … I hate to say, I’m on my dying bed.”