David Boyce leaves Newport News Court with all charges against him dismissed, after a prosecutor determined he didn't have enough evidence to go forward in the case.

NEWPORT NEWS — A man convicted of capital murder and robbery in Newport News more than 22 years ago, but facing the possibility of a new trial, had all pending charges against him wiped away at a court hearing Wednesday.

David W. Boyce, found guilty in the 1990 slaying of Timothy Kurt Askew, had the charges against him dropped after an outside prosecutor, Virginia Beach Commonwealth's Attorney Harvey L. Bryant, determined there wasn't enough evidence to retry the case.

Boyce, 43, has been out on bond since April, a month after a federal judge in Richmond, U.S. District Judge James R. Spencer, ruled Boyce got an unfair trial in Newport News Circuit Court in 1991, and reversed the decades-old convictions and two life sentences.

In his ruling, Spencer gave prosecutors a matter of months to either retry Boyce or "set him free."

Bryant, working with the Newport News Police Department investigators, attempted to reconstitute the case, talking with the 1991 trial witnesses and sending DNA evidence from the murder scene to a state forensics laboratory in Richmond for analysis.

Last week, however, he determined he didn't have enough.

"At this time, following an investigation, there is insufficient credible, admissible evidence to present a charge to a jury and find him guilty beyond a reasonable doubt," Bryant said at Wednesday's hearing.

The substitute judge assigned to the case, Norfolk Circuit Court Judge Mary Jane Hall, said the case is "no cause for celebration" because of Askew's death. But she also said she believes Boyce was the wrong man charged.

Hall said she is "familiar with the record in this case," and her review of the evidence and the case's record leads her to believe that "the wrong person was prosecuted in this matter" back in 1991.

"I can't give you back the last 23 years, but I can give you back the next 23 years," Hall told Boyce. "I can sign the order, and I'm doing so at this time."

"Thank you," Boyce replied.

Nolle prosse

Before signing the order, Hall asked if the case should more properly be a "dismissal" rather than a "nolle prosse." Under a nolle prosse, the charges can be brought back and the case resurrected if more evidence is found.

But one of Boyce's lawyers, Lawrence H. Woodward Jr., said Boyce and his lawyers weren't objecting to the Commonwealth's motion, and said he would leave that decision in the judge's discretion.

Hall signed the nolle prosse order. After the hearing, Woodward said it makes no difference because the charges are now gone and there is virtually no chance they will ever come back.

Walking up 26th Street after the hearing with his wife, his pastor and his attorneys, Boyce said he felt "wonderful" and relieved that the case was over after more than two decades. Sitting in prison all those years, Boyce acknowledged, he had doubts "from time to time" that this day would ever come.

But he said he was gratified by Hall's comments at the hearing.

"We are just thanking God and just celebrating His grace and mercy," Boyce said. "For somebody to acknowledge that it was the wrong person, that was a great thing, and it was an added bonus. ...That was very special for us. It's what we've been praying for, and we're just really grateful."

But Askew's family — some of whom attended the hearing on Wednesday — has believed for 22 years, and still does, that the right man was convicted.

"The judge threw us off when she said she was sorry to David Wayne Boyce for him being incarcerated for something he didn't do," Kathy Askew, the victim's younger sister, said after the hearing. "We feel differently, and God knows differently. (Boyce) will mess up again in life, and only God and him know that. The judge apologized and made it look like he was an innocent man completely, like he didn't do anything wrong."