Commonwealth of Virginia
v. Derek Rocco Barnabei
September 12, 2000

Post Conviction Private Investigation Report in the case of the Commonwealth
of Virginia v. Derek Rocco Barnabei.

Mr. Barnabei is scheduled for execution on Thursday, September 14, 2000.
To view the referenced photographs and affidavits in the attached report go
to: www.angelfire.lycos.com/va2/barnabei
They will be available for viewing at 6:00 p.m. EST.

Prepared by:
Frank Slaton, Private Investigator
Director of Investigations
Security Services of America

Synopsis

Based on the private investigation into this matter we find that the overall police investigation failed to identify that a third person had been present at the time Sarah died.  This failure to understand that someone other than Derek was with Sarah the night she died was the result of the police investigation’s failure to comprehend the significance of physical evidence they had collected at the 48th Street crime scene. The failure to identify and or exploit this evidence meant that the jury was presented with a set of facts, which were incorrect in several critical aspects and, thus, the jury’s guilty finding is fatally flawed.

            One glaring failure of the police investigation and the theory of their case that the Commonwealth convinced the jury was “fact” was that Sarah had been placed in the Lafayette River in the same place as where she was found some 12 to 15 hours earlier.  The actual location where the victim, Ms. Sarah Jean Wisnosky’s body was disposed of – a “third crime scene” – provides critical insight in identifying the individual(s) responsible for the disposal of Sarah’s body into the Lafayette River and, therefore, its absence from the Commonwealth’s case inexorably led to a flawed guilty verdict.  

Another obvious incriminating piece of evidence that has been wholly unobserved by the Commonwealth while lethal to its theory are the socks and sand recovered by the police at the 48th street house.   Investigation has determined that the socks do not fit either Sarah or Derek.   The elimination of the Defendant, Derek Rocco Barnabei and Sarah as the donors of the pair of white socks recovered by police casts serious doubt on Derek’s complicity in the disposal of Sarah’s body.  At a minimum, this evidence implies another individual other than Derek was involved in the placement of Sarah’s body into the river.  Taking into consideration the Commonwealth maintained that Derek single handedly removed, transported and disposed of Sarah’s body, the evidence would suggest otherwise.

            The presence of a pair of shoes in crime scene photographs, the close proximity and potential relationship to the pair of socks; the absence of documentation relating to the collection of the shoes is without explanation.

            The private investigation identified numerous items of physical evidence depicted in crime scene photographs taken at 824 West 48th Street that were not submitted for testing.   Furthermore, these items of physical evidence were not located during the review of the available police department evidence control logs.  In addition, numerous items of physical and or forensic evidence of significant value were either not submitted, not subjected to laboratory testing or were not completely tested.

            Based on all of the information, photographs and evidence reviewed in this matter we conclude that the police investigation was incomplete[1] and that Derek Barnabei’s complicity and guilt in this matter is questionable

 Statement of Facts

            On September 22, 1993 at approximately 6:05 p.m. it was reported by an unknown passerby walking her dog in the 5000 block of Mayflower Avenue in the City of Norfolk, Virginia, that there was what appeared to be a mannequin floating in the adjacent Lafayette River.  Upon responding to the report, officers from the Norfolk Police Department determined that what appeared to be a mannequin was in fact the nude body of an unidentified female.

            Subsequent investigation by the Norfolk Homicide Division identified the body as Ms. Sarah Jean Wisnosky.  Sarah was the Sarah of homicide.

Introduction

            The review, analysis and subsequent private investigation into the rape and murder of Ms. Sarah J. Wisnosky by Derek Rocco Barnabei was conducted utilizing all known and available documentation from Derek’s trial counsel, the Norfolk Police Department’s crime scene photographs and numerous official police documents entered as evidence at trial, the trial record which included the written transcripts of witnesses testimony, Certificates of Analysis generated by the Commonwealth of Virginia, Department of General Services, Division of Forensic Science based on their testing of evidence for the identification of bodily fluids, blood, hair and fibers.

            The assessment of the Norfolk Police Department Investigation was conducted by implementing a multi-faceted approach; initially confirming the accuracy and reliability of information provided by trial witnesses, identifying the significance of the collected, documented, tested and untested physical and or forensic evidence to confirm it’s probative significance, relevance and relationship to critical elements of the crime. 

Secondly, an alternate theory approach was researched based on the accuracy and reliability of information provided by trial witnesses, the significance of the collected, documented, tested and untested physical and or forensic evidence, as well as reviewing, analyzing, and interpreting all of the physical evidence known to have been either photographed, secured and collected from the two crime scenes identified in the police investigation.

The following named individuals are referenced in this report.  They are as follows:

  1. Ms. Sarah J. Wisnosky, Victim
  2. Ms. Saskia Villimil, Suitemate of Ms. Wisnosky
  3. Ms. Nikki Vanbelkum, Roommate of Ms. Wisnosky      
  4. Detective Shaun Squyres, Chief Investigator, Norfolk Police Department, Homicide Division
  5. Detective T.S. Evans, Investigator, Norfolk Police Department, Homicide Division
  6. Detective B.J. Ducher, Investigator, Norfolk Police Department, Homicide Division
  7. Detective W.G. MacKenzie, Investigator, Norfolk Police Department, Homicide Division
  8. Detective E.L. Martin, Investigator, Norfolk Police Department, Homicide Division
  9. Mr. Chuck Griffith, Commonwealth Attorney, City of Norfolk, Virginia
  10. Mr. Troy Maglicmont, Landlord/Roommate of the residence located at 824 W. 48th Street
  11. Mr. David Wirth, Roommate of the residence located at 824 W. 48th Street
  12. Mr. Michael Bain, Roommate of the residence located at 824 W. 48th Street and Tau Kappa Epsilon (TKE) Fraternity Member
  13. Mr. Justin Dewall, Roommate of the residence located at 824 W. 48th Street
  14. Ms. Annette Norfleet, Girlfriend of Justin Dewall
  15. Ms. Andrea McKelvey, Friend of Mr. Barnabei
  16. Mr. Roland Gee, Tau Kappa Epsilon (TKE) Fraternity Pledge
  17. Mr. Ross Firoved, Tau Kappa Epsilon (TKE) Fraternity Member
  18. Mr. Jason Silverstien, Tau Kappa Epsilon (TKE) Fraternity Member
  19. Mr. Eric Anderson, Tau Kappa Epsilon (TKE) Fraternity Pledge
  20. Mr. Thomas Walton, Tau Kappa Epsilon (TKE) Fraternity Member
  21. Mr. Daniel Wilson, Tau Kappa Epsilon (TKE) Fraternity Pledge
  22. Mr. Jeff Baldwin, Tau Kappa Epsilon (TKE) Fraternity Member
  23. Mr. Mike Hyman, Tau Kappa Epsilon (TKE) Fraternity Member
  24. Mr. Renard Zottig, Tau Kappa Epsilon (TKE) Fraternity Member

INVESTIGATION

                The private investigation revealed the existence of a third crime scene not considered by Detective Squyres during the course of his investigation.  The existence of the third crime scene was established by taking into account information relating to the condition of the Sarah’s body during the autopsy.  The Medical Examiner, Dr Faruk Presswalla remarked that Sarah had “superficial abrasions (?) post-mortem from dragging noted on the upper thighs bilaterally extending into the left iliac area of the abdomen on the inner side of the thigh, on the small of the back just above the gluteal cleft, on the back of the left shoulder area.  Some of these abrasions have a railroad type imprint as if from vegetation like sticks”.  “Some of theses marks are consistent with body recovery and with the body dragging against vegetation”.[2]

                The process of elimination negates the crime scenes identified by police as well as the river as contributing to these injuries.  A search of the surrounding area identified the opposite side of Knitting Mill Creek as the location Sarah’s body was most likely disposed of into the Lafayette River.  This area is accessible by vehicle by way of 52nd Street and is a closer and more direct route to the area known as Knitting Mill Creek from the 48th Street residence where the attack was initiated.

            This was established by consulting with Professor Arnaldo Valle-Levison of the Old Dominion University Oceanography Institute.  Utilizing scientific methods, Professor Levinson at our request conducted an experiment to determine the location Sarah would have had to been disposed of in the water to arrive at the location she was found.  It was established that her body would have been disposed of at the location on the opposite side of Knitting Mill Creek as anticipated.[3]  This area accounted for the annotated vegetation marks on the body and provided cover and concealment to avoid possible detection, which the other does not.

            Supporting the theory of the third crime scene was a pair of white tube socks found on the top of a trashcan at the 48th Street crime scene[4].  A study of the socks revealed a significant quantity of sand and debris as well as hair fibers found to be consistent with Sarah were recovered from the socks.  Again the process of elimination was implemented and the crime scenes identified by the police were negated as contributing to the sand and debris noted on the socks.  However the area at the end of 52nd Street accounted for the sand and debris removed from this item during testing.

            Based on the available evidence, the conclusion that Sarah’s body was disposed of on the opposite side of the river is significant and highly probative.  This oversight by Detective Squyres and the police investigation resulted in critical items of physical evidence not being subjected to laboratory testing as well as unrelated materials being mistakenly associated with Sarah’s murder.              

Sequence of Events

In their effort to build a case against Derek, the Commonwealth represented that the sequence of events leading up to Sarah’s rape and murder actually began approximately ten (10) days prior to the incident during a “Toga Party.”  Supposedly, an intoxicated Sarah Wisnosky, while on the front porch of the 48th Street residence and under the supervision of TKE Fraternity members Thomas Walton and Daniel Wilson, made the statement that "He [Derek] was good, but I [Sarah] have had better”.  When confronted by the same TKE Fraternity members and numerous other unidentified TKE members attending the Sunday fraternity meeting the following day, Derek supposedly responded angrily to the member’s hazing and responded that he [Derek] had only had oral sex, not intercourse with Sarah.

Testimonial evidence related a sequence of events directly preceding Sarah’s murder.  The timeline began at approximately 4:00 p.m. on Tuesday, September 21, 1993, when Derek and TKE Fraternity Pledge Roland Gee arrived at Sarah’s dormitory, Rodgers Hall, to pick her up to go with them to the 48th Street residence.

Tuesday, September 21, 1993

4:00 p.m Derek and Roland Gee arrive at Rogers Dormitory to pick up Sarah.
7:00 – 7:30 p.m. Ross Firoved arrives at Derek’s house
8:30 p.m. Sarah, Derek, his housemates David Wirth, Troy Maglicmont and Justin Dewall, TKE Fraternity members Roland Gee and Ross Firoved, along with a Ms. Andrea McKelvey, gathered at 48th Street House to watch HBO presentation of the movie “Single White Female”
9:00 p.m. Michael Bain and Olga Musnikova arrive at the house.  Went to Bain’s bedroom together
9:30 p.m. Dewall’ Girlfriend Annette Norfleet arrives
Gee departs residence
Derek and Firoved  leave for pledge meeting at Jason Silverstein’s house
10:00 p.m. Movie ends, gathering breaks up
McKelvey departs house
Dewall and Norfleet depart, go to Batterson’s Irish Pub
Maglicmont goes to his bedroom located on first floor
Wirth goes to his bedroom located on second floor
10:10 p.m. Wirth goes to Maglicmont’s bedroom where they talk for approximately forty-five minutes
10:00 – 10:30 p.m Derek, Firoved leave Silverstein’s house
Derek and Firoved arrive at 43rd Street fraternity house
10:55 p.m.   Wirth leaves Maglicmont’s bedroom, Maglicmont goes to sleep
11:00 p.m Bain departs house with Mushnikova, drives her to Rogers Dormitory
Sarah calls Saskia Villimil and asks to speak with suite mate Nikki Vanbelkum
11:45 p.m. Bain returns to house, goes to his room and plays Nintendo
Wednesday, September 22, 1993
12:00 a.m. Derek and Firoved leave 43rd Street house
Derek and Firoved arrive at Derek’s house, house is dark and quite.
Derek and Firoved leave Derek’s house approximately 10 minutes later, return to 43rd Street fraternity house
12:00 – 12:15 a.m. Bain states that he hears loud music - “Head Like a Hole” by band Nine Inch Nails - coming from Derek’s bedroom.  Bain stomps on floor, music continues.  Bain leaves his room to go downstairs to get Derek to turn down the music.  At the stairs, Bain meets Wirth somewhere in house and together, armed with paintball guns, they go to Derek’s room and pound on the door for approximately five minutes.  No answer.
12:15 – 12:30 a.m. Wirth states he meets Bain somewhere in house, and, armed with paintball guns, they go to Derek’s room and pound on the door for approximately five minutes.   No answer.
12:30 a.m. Firoved departs 43rd Street Fraternity house.  Derek remains.
1:00 a.m. Derek and Gee depart 43rd Street house together and return to Derek’s house.  Gee testifies that he sees Sarah alive and well.
2:00 a.m. Gee departs Derek’s house, goes home.
2:20 – 2:30 a.m. Dewall and Norfleet return to house.  They go to Dewall’s bedroom.  Dewall looks for his dog.  Goes to Derek’s bedroom, knocks on door.  Derek answers door.
3:00 - 3:30 a.m. Bain wakes up to go to bathroom, hears someone outside of bedroom widow urinating on side of house.  Bain yells out of his bedroom widow.
Unknown Derek wakes Maglicmont for him to move his jeep, Derek is wearing shorts and T-shirt.  As he is leaving, Derek allegedly hits neighboring house with his car, leaves the area driving toward Colley Avenue
6:30 – 7:00 a.m. Wirth wakes up gets ready for work
7:00 a.m.  Bain wakes up
7:30 a.m. Wirth comes downstairs and sees Derek covered with a blanket sleeping on the couch.  Wirth leaves the house to go to work.  He supposedly finds a brown shoe lying in driveway between the front of his truck and rear of Derek’s car.   With picks up the shoe and throws it toward the back porch.  Wirth leaves for work.
8:00 a.m. Bain departs the house.  Does not go to work, has errands to run.
9:30 a.m. Derek calls Eric Anderson, asks him to bring him a blanket because he is cold.  Anderson arrives at the house shortly thereafter with blanket.  Derek dressed in T-shirt and boxers.
9:30-10:00 a.m. Anderson departs Derek’s house
Derek wakes Maglicmont to answer phone call.  Derek dressed in shorts and T-shirts
12:00 – 2:00 p.m Norfleet holds back door open for Derek, who has hands full with surfboard.  Brown shoe is not present on back porch.
Unknown Derek asks Maglicmont to borrow $7.00, Dressed in slacks, shirt and tie.
2:50 p.m Derek calls Richard Patton on phone.  Derek drives to Rogers dorm.   Gives Patton surfboard and gives him a ride to Webb Center.  Derek borrows $100.00 from Patton, they go to 43rd Street fraternity house.
3:00 p.m. Derek and Patton arrive at 43rd Street fraternity house. Derek meets with Anderson in his bedroom.
5:30– 6:00 p.m. Jeff Baldwin asks Derek for a ride to work.  Derek gives Baldwin a ride to Nationsbank located in downtown Norfolk.  Derek borrows $100.00.
Anderson testifies (1606/10) that Derek called him on telephone asking him if he had heard anything.
Unknown Derek checks into Motel in Pocomoke, Virginia (Eastern Shore) under an assumed name

Police Investigation

            Detective Shaun Squyres from the Norfolk Police Homicide Division directed the police Investigation.  Upon recovering Sarah’s nude body, already in full rigor mortis, she was only wearing a watch on her left wrist and high school class ring on her right middle finger. 

An initial search for evidence around the area where the body had been recovered located a brown shoe resting in water and debris on steps of the bulkhead approximately 80 yards from where her body was discovered.   Other items collected were a white washcloth with red stains, a dirty cloth towel, and a piece of plastic with filter. 

            Upon establishing Sarah’s identity, her activities were determined by Detective Squyres and led to a two story single family home located at 824 W. 48th Street near Old Dominion University.  This was the residence identified by Sarah’s roommate Nikki Van Belkum as the location where she had attended the Toga Party with Sarah and was the residence of “Serf”, a TKE Fraternity Brother, and four (4) other young men attending classes at Old Dominion University.  The police were advised that Sarah was last heard from at 11:00 p.m. September 21, 1993, when she called her suitemate Saskia Villamil at the dorm asking to speak with Van Belkum. Van Belkum indicated that Sarah stated that she was calling from Serf’s house and was going to spend the night.

            Police arrived at the 48th Street residence identified by Van Belkum some time after midnight.  Upon approaching the rear side doorway Detective Squyres observed a brown shoe matching the one found on the steps of the bulkhead, situated on the threshold.   At that point, without commemorating or recording the location and condition of the shoe, Detective Squyres moved the shoe from the originally observed location to behind a post situated adjacent to the door.[5]   He then knocked on the door, which was answered by Mr. Troy Maglicmont.  The other occupants of the house were present and identified, as David Wirth, Michael Bain, Justin Dewall and his girlfriend Annette Norfleet. Derek was not at home.  The occupants were then directed to the Police Operations Center where they were interviewed.

The initial search of the area surrounding the house, located the aforementioned brown shoe, which was documented into evidence at 1:54 a.m., and a pair of white socks 2:25 a.m., discovered situated on top of a trashcan adjacent to Derek’s bedroom window. 

            The collection of evidence was established by reviewing numerous police department evidence control logs.

Wednesday, September 22, 1993 (5000 Block of Mayflower Avenue)

 

7:45 p.m.          1993 Heritage High School ring with blue stone on white metal removed from body of Sarah by Detective Squyres

UNK                 1 White washcloth with red stains

                        1 piece of plastic with filter

                        Dirty cloth towel

                        1 Brown deck shoe

Thursday, September 23, 1993 (824 West 48th Street)

1:54 a.m.             Detective Mackenzie recovers one brown

2:25 a.m.             Pair of white socks from outside trashcan

4:25 a.m.             Maglicmont signs consent to search, witnessed by Detective T.S. Evans

4:27 a.m.             Dewall signs consent to search, witnessed by Detective T.S. Evans

4:32 a.m.             Bain signs consent to search, witnessed by Detective T.S. Evans

6:20 a.m.             Detective Squyres submits affidavit for Search Warrant

6:24 a.m.          Detective Squyres obtained a search warrant “specifically the room of Serifino Barnabay, the second room on the left upon entering the front door for Blood Stains, Fibers, Hairs, Clothes of the Sarah or clothing items of Serifino Barnabay, personal effects of the Sarah, Sarah Wisnosky, any and all items pertaining to this homicide”.

8:21 a.m.             Detective Ducher recovers pink towel with stains outside

9:37 a.m.          E.L. Martin recovers 2 strands of suspected human hair, recovered from N.W. corner of the waterbed frame on the outside corner

9:43 a.m.          Samples of suspected paint, on the floor, west side, under the baseboard heater

9:50 a.m.          Suspected carpet fibers, on yellow blanket at foot of waterbed and a piece of suspected plaster/paint

9:54 a.m.          Red stain sample and control collected from top of waterbed frame in N.W. Corner of the room

10:18 a.m.        Blue print hanging on the west wall with red stains on it

10:30 a.m.        Red stain sample and controls from wall, left side of fireplace

10:37 a.m.        Suspected human hairs collected from top of waterbed mattress

10:45 a.m.        Cigarette butts collected from the floor of the fireplace

11:00 a.m.        Piece of white paper with a message written on it

11:06 a.m.        Assorted papers with writing on them collected from the top of the fireplace mantle

11:17 a.m.        Small red Dirt Devil vacuum cleaner, collected from underneath waterbed frame, SW corner

11:25 a.m.        Yellow/red handled Phillips head screwdriver and black handled chisel collected from floor of the closet

11:40 a.m.        1 pair of black handled scissors collected from the top of the fireplace mantle

11:45 a.m.        1 pair of needle nose plyers and a pair of wire cutters collected from top of white plastic table next to the waterbed

11:55 a.m.        Black handled cork screw/bottle opener, with possible red stain on handle, collected from the top of the fireplace mantel

4:10 p.m.          Blue print from west wall

4:12 p.m.          Blue print from east wall

4:15 p.m.          Red notebook with contents, and a roll of blue prints from the top of a table made from a large spool of wire

4:17 p.m.          Assorted telephone bills, collected from the top of a white table next to waterbed

4:43 p.m.          Detective Squyres secured an arrest warrant

Wednesday, September 29, 1993 (824 West 48th Street)  (T.S. Evans)

12:30 p.m.        2 swabs with red stains on them recovered from the waterbed frame, west side of bed near the top of frame and controls

12:31 p.m.        2 swabs with red stains on them recovered from the waterbed frame and mattress/liner west side of bed/frame of waterbed and controls

12:33 p.m.        Suspected human hair recovered from waterbed area west side on bottom platform between frame and mattress

12:34 p.m.        Suspected human hair recovered from waterbed area west side between the mattress and the frame on platform

12:43 p.m.        2 swabs with red stains on them and controls, recovered from the waterbed, west side of frame, near the foot of the bed, between the frame and the mattress

12:45 p.m.        Suspected human hair, south side of waterbed between the frame and the mattress on the bottom platform

12:50 p.m.        Photograph of a W/F recovered from the bedroom on the wall between the closet and the fireplace

Friday, October 8, 1993 (1065 W. 50th Street, Room 249) (Det Squyres and T.S. Evans)

1:45 p.m.          1 surfboard

                        Hairs/Fibers recovered from surfboard

Tuesday, October 12, 1993 (Det Squyres and Inv Bryan)

1:50 p.m.          red stain swabs with controls,

                        2 fibers from top of surfboard

                        1 fiber top corner section

Crime Scene # 1.

            The first crime scene identified by the Norfolk Police Department was located adjacent to the 5000 block of Mayflower Avenue, an upper-middle class neighborhood located on the shores of the Lafayette River in an area known as Knitting Mill Creek.  The vicinity surrounding this area is lined with dimly lit nostalgic lamps and is an open area visually un-impeded by vegetation.  The concrete reinforced bulkhead secures the shoreline on the Lafayette River.  The police investigation concluded that Sarah’s body was disposed of at this same location.  Evidence secured from this location and submitted for testing to the Norfolk Crime Lab included a brown shoe, a white washcloth with red stains and a dirty cloth towel.

Brown Shoe

The brown shoe recovered from this location matched a brown shoe recovered at the 48th Street location and was identified as belonging to Sarah.   The shoe was located on the steps of the bulkhead approximately 80 yards from where her body was removed from the river.  The police investigation interpreted the significance of this shoe as evidence consistent and corroborating their conclusion that Sarah’s body was disposed of at the same location it was removed from the water.

Contrary to their conclusion, the significance of this shoe is simply that evidence was disposed of into the water at the same time and place as Sarah was.  Incorporating the same principles in determining the actual disposal site of the Sarah’s body, the shoe would have arrived at that location the same way Sarah’s body did, carried by the water current.

With numerous items of “expected evidence” not having been located, the shoe should have been an indication that other evidence may have been discarded in the water.   The fact that a matching shoe was originally observed in the driveway at the 48th Street location the shoes were most likely removed from inside of the house with the body.   The assailant apparently unintentionally dropped the shoe in the driveway.  In regard to the “expected evidence” the ultimate fate of these items, does not appear to have been explored.  It is within reason to consider that these items may have been discarded in the river, as was the shoe.  The fact that these items were not observed floating on the water from the shoreline and the volume of the items, it is possible that they were consolidated in some type of unknown bag or container, discarded into the river and sank to the bottom.  Although the Norfolk Police Department maintains and deploys an “Underwater Recovery Team” for incidents of this nature they do not appear to have been mobilized to search for additional evidence in the water.

White Washcloth with Red Stains

            This item was located lying on the ground in the immediate vicinity next to where Sarah’s body was removed from the water.  The washcloth was submitted for testing at which time the noted “red stains” were identified as human blood.  However, this item was not subjected to additional testing to determine if the “human blood” matched Derek or Sarah.  Testing was stopped at the specific request of Detective Squyres on May 11, 1994.  A review of the trial transcript revealed the Commonwealth at trial entered this item into evidence maintaining that it was evidence Sarah’s body was disposed of at this location.

            Referring to the fact that Sarah went into the water on the opposite side of the river, the integrity of the washcloth is questionable.  Firstly, it was not completely tested to determine its relevance to the crime.  Secondly, if the blood identified on the washcloth were to match Sarah’s blood, the documented location it was found is suspect.   Furthermore, it is notable to indicate that a review of the available crime scene photographs does not depict this washcloth in its original state when found.

Dirty Cloth Towel

            The dirty cloth towel was documented and submitted for testing.  The results of the testing proved negative.  Other than the fact that this towel was submitted days prior to trial for subsequent comparison testing to a towel recovered from Derek’s car to determine if they had a same common origin, this item is unremarkable.  The test result of the towel from Derek’s car tested negative for blood and seminal fluid, as did the hairs when compared to those of Sarah.  It was determined that they did not have a common origin.

Crime Scene # 2

            The second crime scene identified by the Norfolk Police Department was the residence located at 824 W. 48th Street located in the vicinity of the Old Dominion University Campus.  The police investigation supported by blood evidence established that the bedroom occupied by Derek was the location where the attack on Sarah occurred. 

The Second Brown Shoe

As previously indicated Detective Squyres initially observed the shoe situated on the threshold of the doorway of the rear side entrance before he moved it behind a post adjacent to the doorway.  Testing of the shoe identified blood on two stains from the shoe. 

In keeping with the theory that Derek acted alone and taking into consideration that Derek’s car was not parked in the same location it was originally, that the matching shoe was found near the body, the second shoe and the testimony relating to its ultimate resting place is questionable.

According to Ms. Norfleet, she did not observe the brown shoe when she was holding the door open for Derek.  This would indicate that the shoe was placed on the threshold where Detective Sqyures observed it after Derek departed the residence for the last time.   This makes Mr. Wirth’s acknowledgement that he had made physical contact with the item and his testimony relating to the location of the shoe where he originally observed it suspect. 

The Socks

The significance of the socks cannot be understated.  Based on the fact that Sarah’s body was disposed on the opposite side of the river, the sand recovered from the socks would indicate that an unknown person was at the 52nd Street location wearing the socks.   Applying the process of elimination, the shoe size of Sarah (size 7) and Derek (size 10 ½) eliminated them as the donors of the socks.  Measuring the socks with a conventional tape measure it is evident the donor of the socks wears an approximate shoe size of 8 ½ to 9.  The socks appeared new as evidence by their condition and the distinctive foot impression that is visible. [6]

Pre-trial testing of hair fibers removed from the socks identified (4) of Sarah’s pubic hairs had adhered to them.  This would indicate that the donor of the socks was not only in the area where the body was disposed of, but also made contact with Sarah’s pubic area.  This most likely occurred at the time her body may have been dragged through vegetation and would be consistent with the Medical Examiner’s Autopsy Report.

Most notable is the evidential significance of the socks in identifying Derek’s complicity in the removal of Sarah’s body from the house to the river.  Equally as notable is the fact Derek is eliminated as the donor of the socks.  These items suggest that a person other than Derek was involved in the disposal of Sarah’s body into the Lafayette River.  The positive identity of the individual who disposed of Sarah’s body should have and can be established by subjecting them to additional DNA review.   Subsequently, the Commonwealth’s representation that Derek was alone in his complicity is inaccurate.

Foot Print on Porch

            Crime scene photographs depict a dirty footprint on the back porch.[7]  The significance of the footprint is that was transposed by a wet and dirty shoe believed to be a Converse Sneaker.  It is obvious someone exiting the inside of the house transposed the footprint.   Furthermore, the footprint indicates that either the shoes were completely wet or the floor inside the house specifically the dining room area adjacent to Maglicmont’s bedroom was wet.

Latent Fingerprint Examination

                According to the results of the Latent Fingerprint Examination report dated March 24, 1995 there were six (6) latent prints of comparable value developed that remained unidentified.   On March 25, 1995 the fingerprint examiner Investigator W.D. Bryan for elimination purposes compared the unidentified latent prints to ten individuals, eliminating all of the individuals as the donor of the unidentified latent prints.  Notable is that only the fingerprints of Michael C. Bain, one of the other four residents of the house was submitted for elimination purposes.

            It is unknown how many items were actually reviewed for fingerprints, but crime scene photographs depict numerous items throughout the room that should have revealed additional fingerprints.

Pink Towel

            The pink towel was located behind a pile of unidentified rubbish at the rear of the neighboring house adjacent to the driveway.[8]  Laboratory testing identified human blood on this item, which was not tested to determine if the blood was Sarah’s at the specific request of Detective Squyres on May 11, 1994.  In addition, hairs and fibers were recovered from this item.  The hair was subjected to additional testing by comparing them to those of the Sarah, who was eliminated as the donor of the hair.

            Close examination of the bloodstains on the towel reveal that it was most likely used to wipe an unidentified object, possibly the murder weapon.

The Murder Weapon

            Although the murder weapon was never recovered, through testimony circumstantial in nature, Ms. Tina Smith a witness for the prosecution acknowledged at trial that she had rented Derek a room in the house she owned in Virginia Beach.  It was only after being contacted by police and asked if she was missing any tools, the witness realized she was missing a ball peen hammer. She described the hammer she was missing as small, rusted with the handle cut off and used by her to hang pictures.  Obviously not the size of the hammer the jury was led to believe was the type of object in shape and size used to murder the five-foot five-inch tall, ninety-five pound Sarah Wisnosky.

            Furthermore, the Commonwealth suggested that this was the ball-peen hammer that was used to attack Sarah.

Missing Shoes

            Upon reviewing crime scene photographs, a pair of shoes can be observed situated on the ground next to the same trashcan the socks were recovered from.[9]  The pair of shoes appeared to have been removed by the same donor of the socks based on reasonable suspicion due to their positioning and close proximity to the socks. 

            A review of the documentation utilized by the police department for documenting the evidence collected did not locate any record of these shoes having been logged into evidence nor submitted for testing.

            Establishing that the pair of shoes originated from the same donor as the socks was critical in establishing the identity of an individual responsible for the disposal of Sarah’s body or in positively proving Derek’s acted alone.

Failure to identify the evidential significance of the shoes and their relationship to the socks resulted in the police investigation failing to establish the identity of an individual responsible for the disposal of Sarah’s body into the Lafayette River at the 52nd Street location.

            The positive identity of the individual who disposed of Sarah’s body should have and can be established by locating the shoes and subjecting them to DNA review.  Subsequently, the Commonwealth’s representation that Derek was alone in his complicity is either affirmed or inaccurate.

            A crime scene photograph depicting items on the floor of Wirth’s bedroom reveals a pair of shoes similar to the ones identified outside the house next to the trashcan.  In addition, a white sock visually similar is also depicted in the photograph.[10]    A review of available evidence logs did not locate any record of these items having been logged into evidence nor submitted for testing.

The Trashcan

Further review of crime scene photographs revealed two unidentified garments believed to be shirts situated on top of the same trashcan as the socks.[11]  A review of available evidence logs did not locate any record of these items having been logged into evidence nor submitted for testing.

These two known garments would appear to have originated from the same individual that wore the socks and shoes.  However, they were over looked by the police investigation as well.   The relationship of these two garments to the socks and shoes is noteworthy and deemed probative.  The absence of police documentation relating to these two garments as well as the shoes exemplifies critical errors in identifying and documenting physical evidence present at the 48th Street location.  The potential relationship and the likelihood that the aforementioned physical evidence is directly related to the individual(s) involved in the disposal of Sarah’s body, the failure to identify the significance, document and submit these items for testing raises considerable doubt on the thoroughness and accuracy of the police investigation.

The Second Trashcan

Crime scene photographs also revealed numerous items of potential evidential quality were moved during the course of the initial police investigation.  Specifically, a second large trashcan appeared after the initial crime scene photographs depicting the area surrounding the house were taken.  It can be observed that photographs taken during the dark hours presumably the night police arrived only depict one trashcan.[12]   However, daylight photographs apparently taken during the morning hours of September 23, 1993 depict the existence of the second trashcan situated next to the first.[13]  The photographs depict what appear to be two (2) thirty (30) gallon trash bags containing unknown items individually situated on top of the second trashcan and on the ground next to it.

A review of available evidence logs did not locate any record of these items having been searched or any of their contents logged into evidence. 

 Taking into consideration that numerous items of expected evidence was never located, the possibility that these items may have been contained in those bags is within reason.   The items of expected evidence that was not located are as follows:

1.       Suspected/Actual Murder Weapon

2.       Sarah’s Clothing and Undergarments

3.       Assailant’s Clothing and Undergarments

4.       Blue Bathrobe known to have been worn by Sarah

5.       Sheets and Bedding from the Waterbed

6.       Necklace known to have been worn by Sarah

Derek’s Bedroom

            The police investigation concluded that Derek departed the City of Norfolk after cleaning his room, borrowing money, and packing all of his personal belonging.  According to Detective Squyres when asked “did you immediately see red spots all over the wall”?   He responded “No, no.  Looking very closely, there was - - The room appeared to have been abandoned”.  “There was no normal furnishings”.   To the contrary, furnishings in the room included a waterbed, a large wooden spool, an afghan covering the window, a fan situated on the floor blowing toward the bed, a small plastic table, pink trash can containing assorted items, numerous architectural drawings, posters and road signs on the wall, various documents and papers, a tie rack with ties, a pillow on the bed and yellow blanket covering the waterbed mattress.

            The representation was that the lack of normal furnishings in the room constituted intentional flight.   However, in considering Detective Squyres expertise and his acknowledgement that the blood was not immediately visible and “no obvious signs of anything when you first opened the door”, is significant.

            Accordingly, there is no evidence that the blood in the room was disturbed revealing that the crime scene was not intentionally disturbed to eliminate blood evidence other than for the unknown disposition of the “expected evidence” missing from the bedroom.

Sarah’s Blood

            The investigation of the bedroom revealed the existence of blood on the waterbed frame, an area on the carpet, on the walls and posters hanging on the walls. According to the trial testimony of Detective Shaun Squyres, blood was not immediately visible upon entering the bedroom and that he had to look closely to see the blood that was present.  A review of police documentation relating to the collection and testing of the blood from the bedroom revealed that there were 42 sets of swabs collected from the bed.  "Human blood was identified on three sets of swabs, designated A,B,C.  Swabs suitable for DNA analysis.  Tests indicated the presence of blood on eleven (11) other sets of swabs, however, no results were obtained in specie testing.  These eleven (11) sets were suitable for PCR/DNA analysis, however no further tests was conducted at the specific request of Detective Squyres on May 11, 1994. No blood was detected on the remaining swabs.  In addition, numerous other stains and swabs were collected from what appeared to be blood splatter observed on the walls and posters in the bedroom some of which were and some which were not tested to determine if it was blood. The stains and swabs identified as blood were "suitable for DNA/PCR testing" but again were not subjected to additional testing at the direction of Detective Squyres on May 11, 1994.   The blood identified on the swabs tested identified Sarah’s blood.

            The amount and consistency of suspected and identified blood from the various locations in Derek’s bedroom definitely indicates that Sarah was attacked within the bedroom.  The pooling and or concentrated areas of blood observed on the waterbed frame and carpet and the blood splatter on the walls is conclusive in establishing that at least some of Sarah’s head injuries were inflicted at this location.

            The injuries observed to the back of Sarah’s head appear to have been the result of her head striking the waterbed frame multiple times. The size of the bloodstain on the area of the carpet appears to have resulted from her head resting at that location.  However, the amount of blood splatter in the room appears inconsistent with what would be expected based on the suspected number of supposed “hammer” blows sustained by Sarah.  The police investigation concluded that the lack of splatter was the result of Derek cleaning the bedroom.  However, a review of crime scene photographs revealed that the areas where blood splatter was identified appeared undisturbed and in tact.  Had the areas containing the blood splatter been cleaned one would expect evidence of wiping and or smearing.   The lack of wiping and or smearing and the fact that the blood splatter remained in tact indicates that there was no attempt to clean these areas.

            Additional observations relating to the injuries sustained by Sarah reveals that the assailant was most likely left handed.  This is supported by the fact that Sarah’s injuries from the supposed “hammer” blows were sustained to the right side of her head and the ligature marks visible on her throat.

            The only confirmed item to have been removed by Derek from the bedroom, which was there at the time of the attack, was a surfboard.  The blood splatter from the surfboard originated from Sarah.   Testimony provided by Commonwealth witness Annete Norfleet revealed that Derek removed the surfboard from the residence during the early afternoon hours of September 22, 1993.  According to Ms. Norfleet, she held the door open for Derek as he was departing with the surfboard through the rear side exit of the house leading to the driveway.  The Commonwealth maintained that the removal of the surfboard by Derek from the bedroom and the house was evidence of his efforts to clean and remove items related to the crime.  However, the blood splatter identified on the surfboard was in tact and did not exhibit any evidence of wiping nor smearing.

The Watch

            Sarah was completely nude when she was recovered from the river with the exception of her wristwatch observed on her left wrist and her high school class ring on her right middle finger.  At the time of the autopsy the Medical Examiner remarked that the watch was “running intermittently with the time noted at 8:41 at which time the watch was stopped”.   Crime scene photographs taken after Sarah’s body was removed from the water depict the time on the watch was 6:52.[14]  The time and condition of the watch noted by the medical examiner would indicate the watch was not functioning properly.  This was most likely the direct result of the watch having been submerged in water.

            The significance of the watch to the police investigation would be to begin establishing a time line, specifically the approximate time that Sarah’s body was placed in the water.  It would have been essential to determine if the watch was or was not water resistant and to determine the specifications of the watch to establish when and if the watch would have stopped as a result of being submerged in water. 

            As previously indicated, the time on the watch depicted in the crime scene photograph was 6:52.   This was established by digitally enhancing the photograph to determine the exact time on the watch when the photograph was taken as the whereabouts and disposition of the watch is unknown.

            Upon consulting with Mr. John Gupton, a watch importer and criminology major, regarding the digitally enhanced photograph, he opined that the watch worn by the Sarah is not water resistant “ and would have stopped within a few minutes of being submerged in water and if the watch were considered water resistant  “it would have stopped within minutes of being submerged in water”.  Mr. Gupton went on to say that even if the watch had been water resistant“ it would have likely stopped in approximately thirty minutes.[15]  As a result, the time on the watch as depicted in the crime scene photograph should have been considered to establish the approximate time Sarah’s body was disposed of into the Lafayette River.

            This analysis would indicate that Sarah’s body was disposed of into the Lafayette River between the hours of 6:25 a.m. and 6:52 a.m. September 22, 1993.  It is unknown if the police investigation even considered the watch as evidenced by the fact that the watch was on her wrist during the autopsy.

            During a post-conviction interview on July 7, 1997, Nikki Van Belkum indicated that she was awaken in the early morning hours of September 22, 1993 by a voice outside her dormitory window at Rogers Hall that she believed was Derek Barnabei.  Although Ms. Van Belkum did not recall the exact time she heard the voice she referenced the time before 7:00 a.m., indicating that she did not go back to sleep because she had to get ready for class.

Derek’s Car

            At the time of his arrest Derek still had the same car he drove while in Norfolk, Virginia.  A thorough search of the vehicle and the contents thereof for trace evidence proved totally negative for any trace of Ms. Wisnosky’s blood, hair and seminal fluid.

            The police investigation concluded based on the testimony of Troy Maglicmont that Sarah’s body was transported from the 48th Street residence to the Lafayette River in Derek’s car.   However the lack of trace evidence would indicate that Sarah was not transported to the Lafayette River in Derek’s car.

            Although it is possible that the vehicle could have been cleaned, the complete and total removal of blood from the car is highly unlikely.  Furthermore, although cleaning the surface areas of the vehicle would visually conceal the existence of blood, the underside of the vehicle’s carpet and body surfaces would not. 

The other possible scenario for the lack of trace evidence would be that Sarah’s body might have been wrapped in plastic to contain the blood preventing it from being transferred into the car.   Due to the fact that her injuries were confined to the head and the significant amount of bleeding that results from head trauma, at a minimum her head would have had to be wrapped to contain the bleeding.  This scenario is also unlikely in that she was found nude and there was no evidence indicating that she was wrapped in plastic.

The lack of trace evidence in Derek’s car should have been an immediate indication that Sarah’s body was most likely not transported from the 48th Street location to the Lafayette River in Derek’s car.

Witness Testimony

            The relevance of testimonial evidence at trial was crucial in establishing a series of circumstances consistent with the Commonwealth’s theory that Derek was Ms. Wisnosk’ys assailant.  A review of the testimony revealed numerous notable inconsistencies not only in the validity of the testimony, but also in the validity of the facts presented by the Commonwealth to the jury.

Bain’s testimony indicates obvious signs of deception.  Bain’s testimony relating to his personal contact with Sarah, recollection of events involving Sarah and his statements are deemed unreliable and incredible.

                        Bain acknowledged an incident at the toga party at which time he had to assist in escorting two unidentified males from the party.  According to Bain, there was incident on the second floor of the house in which the two unidentified men were “trying to get her into a room with them and into the empty bedroom”.  “saying come on and taking her by the arm, and she was saying no, no”. 

            Bain went on to state that he did not recall any specifics relating to the personal characteristics, features or identity of the two males.  However, he apparently observed the incident personally based on the aforementioned statements.

            Bain also testified that the first time he met Sarah was when Derek asked him to remove a sleeping Sarah from his bedroom and carry her upstairs to Bain’s bedroom so Derek could bring in another girl.  Bain acknowledged that he carried Sarah up the stairs to his bedroom and spent the night with her in his single bed.  Notable is the following morning when the two walked downstairs meeting Derek as they were departing the house.  According to Bain, Derek made the comment “you like it in the back door”.  He indicated that she simply smiled and nodded her head.  No other response, no other acknowledgement.   This statement as well as others made by Bain appears interjected to direct attention toward Derek.

            Based on the review of Bain’s testimony it is apparent that he was a valuable Commonwealth witness, however, none of his testimony related directly to the incident in any fashion other than through innuendo.

Questionable elements of Bain’s testimony include:

1.       Bain can not recall the incident involving the two unidentified males in any way other than what Sarah supposedly said

2.       The song “Head like a Hole”

3.       Sarah’s lack of inquiry and response to waking up in Bain’s room and not Derek’s; the comment and apparent lack of response to the insinuation

4.       His waking up from a sleep to go to the bathroom at the same time as what he described as someone urinating on the side of the house

5.       The incident with the “paintball gun”, the circumstances and the time this supposedly occurred

6.       Bain’s acknowledgement that he did not go to work the day of the 22nd because he had errands to run

            Wirth’s testimony was consistent with Bain’s recollection of the “paintball incident”. With the exception that Wirth indicated there were two paintball guns and Bain stated there was one and that Bain heard the music playing and Wirth did not. However, the time they claim this incident to have happened between 12:00 – 12:30 a.m. is questionable when compared to the statements of other individuals known to have been in the company of Derek on the evening of September 21 and early morning hours of the 22nd.  Although it is very possible that they were mistaken about the time both related their approximation of time by referencing their earlier activities.  The end of the movie and his conversation with Maglicmont in his room for Wirth and his departure with Musnikova and approximate elapsed time and duration with her before his return to the house. 

            According to the Commonwealth, the pounding on the door by Wirth and Bain coincided with the time that Derek was supposedly attacking Sarah in his bedroom.  However, the testimony of Firoved places Derek at the 43rd Street house during this time frame.  This would result in Derek having an alibi during the time of the alleged attack on Sarah.   Furthermore, the validity of Commonwealth’s theory that Sarah was attacked during this time period is not consistent when considering the testimony of Gee.

            According to Gee, he and Derek departed the 43rd Street fraternity house together at approximately 1:00 a.m. at which time Gee stated he observed Sarah at the 48th Street house “alive and well”.   Gee stated that they were together in Derek’s bedroom “talking” before his departure at approximately 2:00 a.m.  How could Detective Squyres as well as Mr. Chuck Griffith the Commonwealth’s Attorney not realize the inconsistent and conflicting statements?

            According to Firoved, he and Derek departed the 43rd Street house at approximately 12:00 a.m. and went together to Derek’s house to get something to eat.  Upon arrival at the 48th Street house, Firoved stated that the house was dark and quite and that after not being able to find anything to eat they departed together and returned to the 43rd Street house.   There was no known contact between Derek, Firoved and Sarah at that time.   After returning to the 43rd Street house Derek apparently remained there until he departed with Gee approximately one hour later. 

Considering that Derek borrowed the CD with the song “Head like a Hole” earlier in the evening from Jason Silverstein, Dereks return to the house with Firoved would have been the first time he was at the house since borrowing the CD.  As a result, if Bain heard the song “Head like a Hole” coming from Derek’s bedroom it would have had to have been after Derek and Firoved had arrived and subsequently departed the house.

            Therefore, it could have been possible that Sarah was the one playing the music at the time Bain and Wirth were pounding on the bedroom door.  But, if what Bain and Wirth stated is true, why did Sarah not open the door for them or did she? Based on their statements the only individuals present at the 48th Street residence were Bain, Wirth and Maglicmont. 

            Maglicmont stated that after Wirth departed his bedroom he went to sleep and that although his bedroom was on the first floor and within close proximity of Derek’s bedroom, he did not hear any music.   He heard nothing until Derek supposedly awakened him to move his Jeep to transport Sarah’s body to the Lafayette River.  However, the fact that the testing of Derek’s car produced negative results for trace evidence casts doubt on the entire scenario, the Commonwealth’s theory and representations at trial and Derek’s complicity.

            In reviewing the testimony of Dewall there are a number of conflicts in his testimony on direct examination by the Commonwealth relating to his encounter with Derek when he was looking for his dog.   Initially Dewall stated that after knocking on Derek’s bedroom door, Derek opened the door approximately seven or eight inches.  Opening the door just enough to let his small dog out of the bedroom.  Dewall then stated that Derek stepped out of the bedroom and was standing stark naked with a very vacant look on his face and did not say anything.  On cross-examination he indicated that Derek did talk to him

The Murder

The Commonwealth relying on the Medical Examiner Dr. Faruk Preswalla’s Autopsy Report[16] that indicated Sarah's death was the result of "craniocerebral trauma due to multiple heavy blows to the head and face and contributory mechanical asphyxia" they represented to the jury that the murder weapon was a ball peen hammer, although the actual murder weapon was never recovered.  To support their theory they relied on the Medical Examiner's pathological diagnoses that the craniocerebral trauma was the result of "blunt force injury to head by multiple blows with a heavy object consistent with a rounded surface, wider on one than the other resembling ball peen hammer".  To replicate the type of hammer believed to be the murder weapon, the Commonwealth presented the jury with a large, recently purchased, sixteen (16) ounce ball peen hammer as an example of what they contended the murder weapon was; although, the Medical Examiner only referred to a ball peen hammer to describe the rounded surface of the object that was utilized to inflict the blunt force trauma sustained by Sarah, not that the actual murder weapon was a ball peen hammer.

The Rape

Although it was apparent Derek and Sarah maintained a commonly known consensual sexual relationship, the Commonwealth, to establish a motive for the murder argued that Derek had raped Sarah and subsequently killed her in a fit of rage because she had made the comment to members of the TKE Fraternity at a “Toga Party” held at Derek’s house that "He [Derek] was good, but I [Sarah] have had better”. 

The basis for the rape was that the Medical Examiner opined that the visible vaginal bruising and anal tear observed during his examination of the Sarah’s body was "consistent with sexual abuse" and that the DNA evidence collected as part of the PERK (Physical Evidence Recovery Kit), utilized when collecting bodily fluids such as blood, semen, fingernail scrapings and clippings, hair and fiber evidence from Sarah and Derek for subsequent DNA analysis, testing and comparison purposes identified his semen on the vaginal swabs. 

The Medical Examiner’s testimony regarding the vaginal bruise and anal tear opined that the injuries were consistent with sexual abuse, yet he conceded on cross-examination by the defense that "generic rough sex" could have also accounted for the injuries.  

DNA Evidence

The DNA evidence was developed by the Commonwealth of Virginia, Department of General Services, Division of Forensic Science located in Norfolk, Virginia utilizing fluid samples secured during the Medical Examiner’s autopsy and maintained as part of the Sarah’s PERK.  Relevant DNA samples of bodily fluids, blood and hair from Sarah were identified, typed and annotated utilizing conventional DNA testing protocol available at the time. 

Relevant DNA samples of bodily fluids, blood and hair provided by Derek were utilized for comparison purposes and identified Derek’s semen on the vaginal swabs taken from Sarah’s body. Additionally, Sarah’s blood was identified on swabs that originated from suspected blood on the wooden frame of the waterbed, splatter from the walls within Derek’s bedroom as well as from a surf board known to have been in Derek’s bedroom. 

            The items submitted for testing and the results thereof are represented as attached.[17]

Commonwealth's Theory

The Commonwealth Attorney Mr. Chuck Griffith represented to the jury that the 17 year old, Old Dominion University Freshman Sarah Jean Wisnosky, was violently raped and murdered by Derek Rocco Barnabei in his bedroom between 12:00 – 12:30 a.m., Wednesday, September 22, 1993 masking the sounds of the attack by loudly playing a borrowed Compact Disk (CD) by the band “Nine Inch Nails”; specifically the song “Head Like a Hole” from the album “Pretty Hate Machine”.  That Derek single handedly removed Sarah’s lifeless body from the house located at 824 West 48th Street in the City of Norfolk, Virginia through his bedroom window, placed her badly beaten body in his car and transported her to the 5000 block of Mayflower Avenue, disposing of her nude body into the Lafayette River in an area known as Knitting Mill Creek.  This was the same location that Ms. Wisnoky’s body was recovered

            The Commonwealth maintained that after disposing of the Sarah’s body, Derek returned to the residence where he went to sleep on the couch in the living room.   Subsequently, the Commonwealth portrayed a sequence of events beginning at 7:00 a.m. maintaining Derek began concealing his crime by cleaning blood and removing physical evidence from his bedroom throughout the day, planning his departure from the City of Norfolk by soliciting and borrowing money from numerous members of the Tau Kappa Epsilon (TKE) Fraternity with which Derek was affiliated, as well as having money wired to him via Western Union from his mother Jane Barnabei.   

            The Commonwealth challenged Derek’s credibility and character through the utilization of testimonial evidence relating to his fraudulent affiliation with the TKE Fraternity, his personal acknowledgements relating to his personal history and identity, as well as adjudicated and non-adjudicated criminal misconduct.

            According to the Commonwealth, Derek’s overall character and actions prior to and on the evening of September 21, 1993, during the early morning hours and throughout the day of September 22, 1993 followed by his departure from Norfolk, Virginia resulted from his complicity, constituted flight and proved that Derek alone was the assailant and guilty of raping and murder Sarah.

The Commonwealth's Conclusion

The Commonwealth contended that Sarah was attacked, raped and murdered by Derek in his bedroom during the playing of the song “Head Like a Hole”.   That the music was playing to conceal the sounds of the attack, Sarah's screams and Derek’s rage.  Derek’s actions at the time he demanded Maglicmont to move his car were that of an assailant departing the residence to dispose of the Sarah in the Lafayette River.  The Commonwealth further theorized that Derek transported Sarah’s body in his car to the 5000 block of Mayflower Avenue where her body was disposed of at the same location it was discovered.  That Derek returned to his residence, went to sleep followed by cleaning blood and removing physical evidence from the bedroom and subsequently departed the City of Norfolk.  Subsequently, Derek established domicile under an assumed name in Cuyahoga Falls, Ohio were he was ultimately apprehended.

[1] Affidavit of Detective Shaun Squyres

[2] See Autopsy Report

[3] Affidavit of Professor Arnaldo Valle-Levinson

[4] See Photograph, socks on trash can

[5] See photograph, shoe behind post

[6] See photograph of socks with tape measure

[7] See photograph, footprint on porch

[8] See photograph, pink towel

[9] See photograph, shoes next to trash can

[10] See photograph, shoes and white sock from Wirth’s bedroom

[11] See photograph, garments in trashcan

[12] See photograph, night photo of trashcan

[13] See photograph, daylight photo of two traschcans

[14] See photograph, watch on wrist

[15] Affidavit of John S. Gupton

[16] Autopsy Report

[17] See Physical Evidence Reference Chart