NEWPORT NEWS — A federal judge on Tuesday vacated the capital murder conviction and two life sentences of a man who has been imprisoned for more than two decades in a Newport News case, ordering him released if he's not tried again within 120 days.
U.S. District Judge James R. Spencer, who sits in Richmond, granted the petition of David W. Boyce, convicted of capital murder and robbery in the 1990 slaying of Timothy Kurt Askew, 35, at an Econo Lodge on Jefferson Avenue in Oyster Point.
The jury at the 1991 trial spared Boyce the death penalty. But until Tuesday, Boyce, now 42, was destined to spend the rest of his life behind bars.
"Boyce's convictions and sentence are VACATED," Spencer's order said, according to an entry to the federal court's online docket. "Unless the Commonwealth retries (Boyce) within 120 days," the state must set him free.
Before Tuesday, the paperwork from both sides in the petition for a writ of habeas corpus had been on Spencer's desk for more than 11 months. There had been no movement on the court's docket during that time, and no indication on how he would rule.
But in the end, Spencer granted Boyce's motion for summary judgment, meaning the judge determined he had enough information to make a ruling even without further hearings or arguments. He denied a motion by the state Attorney General's office to dismiss Boyce's petition.
Along with his order, Spencer issued an opinion spelling out the reasons for his ruling. But it wasn't posted at the court's online docket, and Boyce's lawyers had not received the opinion by press time Tuesday.
Spencer's ruling comes nearly three years after a state judge in Norfolk held an extensive hearing in the then-20-year-old case.
After that hearing, Circuit Court Judge John R. Doyle III ruled that a Polaroid picture crucial to Boyce's defense was never shared with Boyce's trial attorney. But Doyle said the fact that the issue wasn't raised within the requisite 21 days after the trial means nothing can be done about it.
"The court finds that the commonwealth unwittingly suppressed material exculpatory evidence, and compounded this error by presenting demonstrably false testimony touching on the same issue," Doyle wrote in the 2010 ruling. "However, the court finds that Boyce's failure to raise the issues" at or soon after trial "disallows him from seeking relief."
The Polaroid — showing Boyce with short or medium hair — was snapped by a Newport News police employee when Boyce was brought into the police station the morning Askew was found dead.
Doyle wrote that Boyce's lawyer could have used that picture to counter the state's tying Boyce to a motel clerk's trial testimony that a suspicious-looking man at the motel that night had "shoulder length hair."
Instead, a Newport News police technician made that connection, testifying that Boyce had "almost shoulder length" hair when he was brought in.
"No reasonable person could possibly look at the photograph and describe Boyce's hair as almost shoulder length," Doyle wrote. As such, he wrote, the Polaroid "would have undermined the (state's) case against Boyce." But, he said, Boyce needed to bring it up within 21 days of the trial under Virginia's procedural rules.
Since Boyce was looking at the camera when Polaroid was being taken, Doyle said, he should have remembered it.
That ruling was later upheld by the Virginia Supreme Court.
A long fight
After decades of fighting his conviction in state courts to no avail, Boyce filed a federal petition for a writ of habeas corpus. That's essentially an argument that the state of Virginia violated his constitutional rights and does not have the right to hold him.
A key dispute at the federal level was whether Virginia's procedural rules should have prevented Boyce from making his claim, said one of Boyce's lawyers, David Koropp, a Chicago attorney with the firm Winston & Strawn.