COLUMN: Boyce deserves a new trial

David Wayne Boyce sits in a hearing before Circuit Court Judge John R. Doyle III in early July to decide whether the convicted murder defendant should get a new trial. Boyce's petition was denied.

David Wayne Boyce sits in a hearing before Circuit Court Judge John R. Doyle III in early July to decide whether the convicted murder defendant should get a new trial. Boyce's petition was denied. (Rob Ostermaier, Daily Press / June 29, 2010)

There are all sorts of ways to begin this column, but let's begin with this:

Miscarriage of justice.

That's the upshot, the sick punch line when you sift through the 1991 murder trial of David Wayne Boyce, his subsequent appeals and what looks like mounting evidence of his innocence.

Even Norfolk Circuit Court Judge John R. Doyle III conceded last week when he shockingly denied Boyce's plea for a new trial that a police technician gave "demonstrably false" testimony, and that certain evidence, had it been presented to the jury, "would have undermined the case" against him.

But there's more. The prosecution's key witness has since shown himself to be unstable and a liar.

Newer forensic tests on fingerprints, hair, blood and semen at the crime scene offer no evidence whatsoever that Boyce was ever there, but that some mystery man was.

Legally speaking, too bad, so sad. Why? Because procedure wasn't followed.

And we must by all means follow procedure, even when it leads to, yes, a miscarriage of justice.

Boyce was convicted of killing Timothy Kurt Askew back in May 1990. Askew was 35, bisexual and a partier. Boyce, then 19, was crashing on Askew's couch at the Econo Lodge for a few days after arguing with his wife.

What we know from trial testimony is that, the night he died, Askew was at a club with his ex-wife, who left before midnight because Askew indicated he was meeting someone.

At 2:17 a.m. Askew was back at the Econo Lodge, renting a second room for the night. He also stopped at the room he shared with Boyce to grab beer from the fridge before leaving again.

Around 3 a.m., a desk clerk making the rounds saw a suspicious man with shoulder-length stringy hair skulking on the property. When he approached, the stranger fled.

The next morning, Boyce went off to work, and a maid found Askew's body in that second room he'd leased — naked, curled in a fetal position, stabbed 16 times, horribly mutilated, slashed from ear to ear and chest to groin.

Police gathered tons of biological evidence, including semen, from the crime scene — none of it pinpointed Boyce, but some did indicate an unknown third man.

The state's key witness was a career jailhouse informant named Herman P. Elkins, who testified that Boyce confessed to killing "Timothy" (strange, because Askew was always called "Kurt," even by Boyce), and that Boyce and Timothy were gay lovers.

Elkins also said he overheard Boyce confess to a jailhouse minister. The minister testified Boyce did no such thing.

Boyce was convicted on circumstantial evidence and the weight of his "confession" to Elkins.

But in 2004, Elkins called Boyce's attorney and — in a conversation the attorney recorded — said he'd lied at trial, and Boyce never confessed. A few days later, though, asked to sign an affidavit that he'd perjured himself, Elkins declined. Boyce, he said, had confessed, after all.

In 2003, Boyce requested that crime scene samples be tested using more sophisticated technology. Results showed, yet again, no evidence that Boyce had been there. But, again, that an unknown third man had.

In 2008, a crucial Polaroid photo of Boyce surfaced, taken the day of the crime and showing him with short hair. This photo refuted testimony by a police technician at the time that Boyce had "almost shoulder-length hair" — testimony that Judge Doyle now considers "demonstrably false."

No matter where you stand on Boyce's guilt or innocence, you'd think such evidence would, in the name of justice, get a fair hearing. The Mid-Atlantic Innocence Project certainly expected one — it has an interest in Boyce's case.

Instead, citing "procedural default" — legalese for "you should have mentioned this earlier" — the judge denied the request for a new trial.

Basically, Boyce should have remembered that police photo during his original trial and challenged the technician's false testimony then. The fact that he only remembered the photo years later is no excuse — and no cause to consider it now.

"Human frailty … is not a recognized good cause," Doyle wrote in his ruling. "If it were, finality would be a much rarer thing."

But far better for finality to be a rarer thing, if it means justice will be less so.

Contact Dietrich at 757-247-7892 or tdietrich@dailypress.com.

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