Derek Rocco Barnabei

Executed September 14, 2000 by Lethal Injection in Virginia

68th murderer executed in U.S. in 2000
666th murderer executed in U.S. since 1976
6th murderer executed in Virginia in 2000
79th murderer executed in Virginia since 1976

Since 1976
Date of Execution
(Race/Sex/Age at Murder-Execution)
Date of
(Race/Sex/Age at Murder)
Date of
Method of
to Murderer
Date of
Lethal Injection
Derek Rocco Barnabei

W / M / 26 - 33

Sarah Wisnosky

W / F / 17

Strangled, Beaten With Hammer

Derek Barnabei was convicted, sentenced, and executed for the capital murder and rape of 17-year-old Old Dominion University freshman Sarah Wisnosky. Wisnosky dated Barnabei and was last seen at the apartment he shared with others. On Sept. 22, 1993, Sarah's nude body was found in the Lafayette River. She had been strangled and suffered 10 blows to the head from what appeared to be a ballpeen hammer. Barnabei fled to Ohio. Stains matching Sarah's blood type were found in Barnabei's room, and DNA evidence showed that semen matching Barnabei's was present in Sarah's body. At the Clemency stage, Governor Gilmore ordered further DNA testing of the victim's fingernail scrapings at the urging of Barnabei's lawyers, who claimed innocence. The additional DNA testing showed Barnabei's blood and confirmed guilt. There were no witnesses to the crime and a murder weapon was never found.


Internet Sources:

Virginia Governor Gilmore Press Releases

Statement by Governor Gilmore Regarding Execution of Derek Rocco Barnabei and DNA Tests of Victim's Fingernails - DNA Tests Confirm Barnabei's Guilt.

"After a jury trial of 11 days, Derek Rocco Barnabei was convicted of capital murder and rape of 17-year-old Sarah Wisnosky. After hearing additional evidence related to aggravating and mitigating circumstances, the same jury sentenced Barnabei to death and the presiding judge affirmed the sentence. "The evidence was overwhelming that Barnabei raped and murdered Sarah Wisnosky. Two separate DNA tests performed during the original investigation revealed that Barnabei's semen was present in the victim. DNA tests also showed that no other person's semen was present. An autopsy confirmed the sexual intercourse was by force. DNA tests also confirmed Ms. Wisnosky's blood was on Barnabei's bed and throughout his room. In addition, Barnabei fled Norfolk in the hours before Ms. Wisnosky's body was found and thereafter lived under an assumed name. Based on a review of all of this evidence, the U.S. Court of Appeals for the 4th Circuit ruled that the evidence 'admits of no real uncertainty on the question whether Barnabei raped Sarah Wisnosky.' "Last week, in of an abundance of caution, I directed the Virginia Division of Forensic Science to perform additional DNA tests on fingernail clippings taken from Ms. Wisnosky's hands. Barnabei, through his attorneys, requested this testing on the theory that Ms. Wisnosky scratched her attacker as she was choked.

"Pursuant to an Order of the Norfolk Circuit Court, the evidence envelopes containing Ms. Wisnosky's fingernails were delivered to the Virginia Division of Forensic Science. Dr. Paul Ferrara, Director of the Division of Forensic Science, advised me that the fingernail clippings were received uncompromised, in their original sealed and secured envelopes, one containing clippings from the left hand and one from the right. Dr. Ferrara further advised that the envelope seals displayed the initials of the examiner who originally reviewed the fingernail clippings and secured them in the envelopes. That seal was secure and unopened. Based on Dr. Ferrara's opinion, I directed DNA tests on the fingernail clippings to proceed. "The Division of Forensic Science has concluded its DNA tests and has presented the test results to me today, September 11, 2000. The new DNA tests reveal that Ms. Wisnosky's fingernails contained her own DNA and the DNA of one other person. The Division of Forensic Science ran the DNA profile of the second individual through the Commonwealth's DNA data bank. The search revealed a positive match with one and only one individual -- Derek Rocco Barnabei. "This DNA test result confirms that Derek Rocco Barnabei is guilty of the rape and murder of Sarah Wisnosky and vindicates the jury's verdict, as well as the numerous appellate court rulings upholding the jury. "I extend my heartfelt sympathy to Ms. Wisnosky's family for their loss and for any pain caused by this clemency process.

"Now that the guilt of Barnabei has been confirmed, there remains the generalized assault on capital punishment by many in this country and foreign countries. I believe we are entitled to set a moral standard that violent murder will not be tolerated by a civilized people. The rule of law requires that at some point the community is likewise entitled to justice. "Based upon a thorough review of the DNA test results confirming Barnabei's guilt, the numerous court decisions in this case, and the circumstances of this matter, I decline to intervene in the case of Derek Rocco Barnabei."

An execution date has been set for Derek R. Barnabei, who was convicted of raping and murdering Old Dominion University student Sarah Wisnosky almost seven years ago. Circuit Judge Charles E. Poston ordered that Barnabei will be put to death on Sept. 14. Barnabei's lawyers continue to appeal the capital murder conviction. They have called for a new trial based, in part, on incomplete DNA testing of crime-scene evidence before the trial. Much of Barnabei's efforts have focused on blood discovered under Sarah's fingernails, which was never tested for DNA identification. Prosecutors argued they did not need the additional evidence tested to prove Barnabei's guilt. But Barnabei's attorneys said the testing may well implicate another suspect in the murder. A request for more DNA testing was also mailed to Gov. Jim Gilmore according to one of Barnabei's attorneys. Barnabei also intends to appeal his case to the U.S. Supreme Court.

On Sept. 22, 1993, Sarah's nude body was found in the Lafayette River. The 17-year-old freshman from Lynchburg had been strangled and suffered 10 blows to the head from what appeared to be a ball-peen hammer. Barnabei, who had been dating Wisnosky, fled to Ohio. Barnabei, who denied the charges, was convicted of capital murder and rape in 1995. Stains matching Sarah's blood type were found in Barnabei's room, prosecutors said. Prosecutors presented forensics evidence that semen matching Barnabei's was present in Sarah's body. Barnabei's attorneys said the evidence was only consistent with a consensual relationship.

UPDATE: DNA test results on blood under Sarah's fingernails confirmed Barnabei's guilt. The blood belonged to both Sarah and Barnabei.

Fight the Death Penalty USA

Derek Barnabei was executed Thursday night for the rape and murder of a college girl he dated. Hours earlier, the U.S. Supreme Court twice refused to grant a stay in the case that was closely followed in Italy. Barnabei, 33, was put to death by injection at the Greensville Correctional Center for the 1993 slaying of Sarah J. Wisnosky, a 17-year-old Old Dominion University freshman. He was pronounced dead at 9:05 p.m.

"I am truly innocent of this crime," Barnabei said in a final statement. "Eventually, the truth will come out." Afterwards, he told his mother and brother he loved them, cited a passage from the Bible and thanked several people who had taken an interest in his case. Barnabei was brought into the execution chamber at 8:54 p.m. He glared at Virginia corrections director Ron Angelone, who was on a red telephone linked to Gov. Jim Gilmore's office. Barnabei wore a blue shirt, dungarees, white socks and blue shower slippers. The Rev. Jim Gallagher, a Roman Catholic priest, spoke to Barnabei briefly in the execution chamber and then entered the witness booth, where he whispered prayers throughout the execution. The lethal chemicals began flowing into Barnabei's left arm at 9:02 p.m. Barnabei continued talking until his lip movement suddenly stopped a few seconds later. Barnabei had his final meal at 5:06 p.m., but prison officials, at Barnabei's request, declined to reveal what he ate. No family members of the victim attended the execution, corrections officials said. About 25 death penalty opponents conducted a candlelight vigil outside the rural prison's main gate as the execution hour approached. Barnabei repeatedly said he was innocent. The case was closely followed in Italy because he is Italian-American and that country opposes the death penalty. In an interview Wednesday, Barnabei said: "I don't want to die and it's unjust that I die. If this is what God wants, then so be it. I accept it. Who am I to question the ultimate design?"

Barnabei's spiritual adviser, the Rev. Bob West, met with Barnabei for about 90 minutes Thursday and said the condemned man was "ready to die." "He's at peace, in great spirits," West said.

Craig Barnabei, Derek Barnabei's brother, described him as "remarkably calm and at peace with himself." At a final family meeting at the prison, Barnabei told his brother and mother Jane to "to go on with our lives and fight," Craig Barnabei said. "I hope this is not for nothing," Craig Barnabei quoted his brother as saying. "I hope people take a hard look at my case." Barnabei also wanted his body cremated, but his mother talked him out of it, his brother said.

About 2 hours before the execution, Barnabei wrote out a will by hand. Andy Protogyrou, one of Barnabei's attorneys, declined to identify Barnabei's beneficiaries. Earlier Thursday, Barnabei's lawyers filed a clemency petition with Gov. Jim Gilmore, even though the governor had said Monday that he would not grant clemency because new DNA testing confirmed Barnabei was guilty. "Serious doubts still surround this case," lawyer Seth A. Tucker said in the petition filed Wednesday. He argued that Barnabei should not be executed while a state police investigation continues into a temporary disappearance of evidence in the case. "It would do a disservice not only to Derek Barnabei, but also to the people of the Commonwealth of Virginia, to continue with an execution when there is still no conclusion as to who moved the evidence, what they did with it, and why," Tucker wrote. Gilmore said Thursday that he is sure nobody tampered with the evidence that was tested -- Wisnosky's fingernail clippings, which were in a sealed envelope that had not been opened. He also said plenty of other evidence was considered at trial and in Barnabei's appeals. "We can't retry cases in the governor's office," Gilmore told reporters.

The Supreme Court's denial of two stay requests followed rulings against Barnabei by the 4th U.S. Circuit Court of Appeals and U.S. District Judge James Spencer in Richmond. The courts dismissed defense arguments that the state tampered with evidence and that more DNA testing should be done because some evidence disappeared from Aug. 29 to Sept. 1 at the Norfolk Circuit Court clerk's office. Barnabei had asked for DNA tests on some of that evidence -- genetic material on Wisnosky's fingernail clippings -- in effort to prove someone else committed the crime. Instead, the DNA tests matched Barnabei. Wisnosky was last seen alive in Barnabei's room in a house he shared with other young men in Norfolk. Her nude and beaten body was found floating in the Lafayette River. Barnabei becomes the 6th condemned inmate to be put to death this year in Virginia and the 79th overall since the state resumed capital punishment in 1982. Only Texas has put more condemned inmates (231) to death since the death penalty was re-legalized in the USA on July 2, 1976. Barnabei becomes the 68th condemned inmate to be put to death in America this year and the 666th overall since executions were resumed on January 17, 1977. (sources: The Virginian-Pilot & Rick Halperin)

Virginia Execution Carried Out, Italy Outraged.

JARRATT, Virginia -- Despite protests in Italy and a plea for clemency from the Vatican, Italian-American Derek Rocco Barnabei was executed by injection Thursday in Virginia for killing his teen-age girlfriend seven years ago. The execution was carried out days after DNA tests further implicated the 33-year-old Barnabei in the rape and murder of Sarah J. Wisnosky, a 17-year-old Old Dominion University freshman he had been dating. "I am truly innocent of this crime," Barnabei said in a final statement. "Eventually, the truth will come out."

He was the fifth person put to death this year in Virginia, which trails only Texas in the number of executions carried out since 1976, when the U.S. Supreme Court reinstated capital punishment. Barnabei's case has generated widespread outrage in Italy, his nation of ancestry. The pope appealed for the sentence not to be carried out and Italian athletes at the Olympics in Sydney, Australia, vowed to lower the Italian flag during the opening ceremonies in protest. The State Department has warned U.S. citizens in Italy to be especially careful after the execution, citing threats of retribution from unknown persons.

Governor: DNA Confirmed Guilt

Barnabei's lawyer had filed a petition asking Gov. Jim Gilmore to grant clemency, even though the governor said Monday he would not do so because the DNA tests confirmed Barnabei's guilt. "Serious doubts still surround this case," wrote the lawyer, Seth A. Tucker, whose claims of evidence tampering by the state are under investigation. Some evidence in the case disappeared from a secure holding area in the Norfolk Circuit Court Clerk's office late last month. It was later found in the office. Gilmore said he is sure no one tampered with the evidence that was tested -- Wisnosky's fingernail clippings, which were in a sealed envelope that had not been opened. He also said other evidence was considered at trial and in Barnabei's appeals. "We can't retry cases in the governor's office," Gilmore said. 'I don't want to die'

Wisnosky, a 17-year-old undergraduate at Old Dominion University, Norfolk, Virginia, was last seen alive in Barnabei's room in a house he shared with other young men in Norfolk. Her blood was splattered on the bed, walls and carpet of the room, and on a surf board in another room in the house. Wisnosky's nude body was found floating in the Lafayette River. She had been strangled and struck repeatedly with a blunt instrument. Barnabei, alleging that police and prosecutors were conspiring to protect the real killer, had asked for DNA tests to prove someone else committed the crime. Instead, the DNA tests matched Barnabei.

"I don't want to die and it's unjust that I die," he said in an interview Wednesday. "If this is what God wants, then so be it. I accept it. Who am I to question the ultimate design?" In Italy, which is largely opposed to capital punishment, protesters gathered in vigils earlier this week. Walter Veltroni, secretary of one of Italy's main political parties, told the crowd that capital punishment was uncivilised, even for murderers. His sentiment was echoed by Lamberto Dini, the Italian foreign minister, who told a press conference in New York that capital punishment is "immoral and uncivilised."

Save Derek Rocco Barnabei

Derek Rocco Barnabei (1967-2000)
Innocent Man Murdered by the State of Virginia

``I am truly innocent of this crime. Eventually the truth will come out. I love you Mom, I love you Craig, I Love you Fabrizio, I Love you Patrizia, I love you Tony."

"The Sea"

I am the sea, so bold and strong
I laugh and play all day long
Nothing can worry me
Because I'm completely free.

"The Sea" is by Derek Rocco Barnabei at age 5.

"The Barnabei case represents one of the most egregious miscarriages of justice and one of the most compelling cases of innocence I have ever seen in all my years of practicing law." (Alan Dershowitz, Professor of Law, Harvard University)

"You have a better chance in America to receive justice if you are rich and guilty than if you are poor and innocent" (Barry Scheck, Innocence Project, Cardozo School of Law)

Derek Rocco Barnabei grew up in the loving family of Jane and Serafino Barnabei as a regular child of remarkable intelligence, in a New Jersey town. In school, he won honors and praise for his writing on topics such as patriotism and received a personal letter of congratulations from U.S. Senator Edward Kennedy.

In grade school Derek could easily be found writing poetry such as: "Big Dad"

Big Dad's the greatest.
He never turns you down.
And when you have
Peace and tranquillity,
You'll know Big Dad's in town.

On the back of the same ruled sheet of paper, Derek would also give us his philosophy:

"The Day"

The day's almost gone,
And the year will go on,
And listen here lad
It doesn't help to be so sad.

At the age of 8 Derek also manages to get a Green Belt in The Korean Tang Soo Do (Karate) Association. The long list of achievements continues throughout his life. He plays soccer and basketball when he is 10 years old, and wins awards in both categories. At 12 he wins "The Fire Prevention Award" gets certified on Boatman's Safety Course, and Somers Point Public School is only pleased to announce, year after year, that Derek is on the High Honor Roll. Citations of Merit are given to Derek on topics such as: "Why I Think America Is Great" and "Mental Gymnastics II." When Derek is only 13, he is very active in Young Art, and as versatile as he is, his hard questions prompt Congressman William J. Hughes, to write back:

"Dear Derek: Thank you for writing in order to express your views on a subject of mutual interest and concern. I certainly understand your fears about not being able to afford a college education, especially if you have aspirations about becoming a doctor. Tuition is very costly, and, with inflation, the cost of college education is increasing every year..."

The Veterans Of Foreign Wars Of The United States, award Derek, when he is 17, for having placed first in both local and district levels contest for his "Voice Of Democracy" Speech Writing Essay. Proudly Derek gets published in "The Press" of Atlantic City. On that occasion Derek's Dad humbly tells that "Derek is more than qualified to write on patriotism. A brother is a West Point graduate. An uncle was a survivor of the Bataan death march during World War II. And a cousin holds the Silver Star." "Derek has received numerous honors, - continues The Press - including the Rotary Club award, an honor accorded the junior high school graduate with the highest scholastic grades."

Derek went on to college for for 1-years after he graduated from High School. Derek was a brilliant mind with a brilliant future, but was extinguished in Virginia on September 14, 2000, injected with a combination of lethal chemicals at 9:02 p.m. and was pronounced dead at 9:05 p.m.

CNN Europe

Barnabei Case Detective Breaks Silence

During the past seven years, Officer Shaun Squyres has weathered insults and accusations from Barnabei supporters that were sent around the globe by foreign media and the Internet. NewsChannel 3's Mike Mather sat down with him today for an exclusive interview as he shared his perspective on the case. Squyres was the senior homicide investigator in 1993 when a jogger spotted a body floating in the Lafayette river. He says he never imagined the attention the case would eventually receive. Seven years later, he is certain of one thing -- he got the right man. "I am absolutely, 100 percent confident that Derek Barnabei killed Sarah Wisnosky and disposed of her body. And he is 100 percent guilty," Squyers said. Squyres was then Norfolk's senior homicide investigator seven years ago when he stood on the shores of the Lafayette River as the murder case unfolded. Last night, he watched the execution of the killer he pursued across the country. During those years, he bore the brunt of defense attacks and conspiracy theories. He never responded. "When my son was convicted, it wasn't just circumstantial evidence. It was evidence planted by Shaun Squyres," Derek Barnabei's mother, Jane Barnabei, said.

For a man who has grown up here and is now raising a family here, the attacks were sometimes uncomfortable. "It hurt, sure. This is my hometown. My family is here. My children go to school here. My children go to ODU," Squyres said. "If the people who don't like me, or attack me professionally are murderers, drug dealers, and the attorneys that are on their payroll -- OK, I can live with that. I'm happy about that. I am almost proud of that." Squyers said. Squyres is now a police sergeant, working in Norfolk's second precinct. He says seven years of attacks on his character have made him a better officer and a better person. And, they helped him find out who his true friends are.


"Final Hours: Covington partner Seth Tucker puts everything on the line as his client nears execution," by Jake Richardson. Legal Times (September 20, 2000 )

At 8:45 on Thursday night, the two guards at Greensville Correctional Center told Derek Rocco Barnabei it was time. They asked Barnabei's attorneys -- including Covington & Burling partner Seth Tucker -- to step into the viewing room. In a few minutes, a Roman Catholic priest would walk Barnabei to the gurney where he would be strapped down and executed by lethal injection. Tucker looked dismayed. He thought he would make the walk, too, but the guards told him that was not allowed. Before the quarrel escalated, Barnabei told his attorneys he would be all right. Afterward, Tucker found out the two guards were trainees, and that he should have been permitted to escort Barnabei to the injection chamber. "They could not even get that right," Tucker said later.

Tucker, a commercial litigator in Washington, had spent the previous weeks in a steadily escalating frenzy to stave off the execution of his client. But the last two days in particular had been a whirlwind of activity, the likes of which most lawyers never experience: litigation running simultaneously on several tracks; a growing storm of international media interest; the presence and pressure from the condemned man's family and friends; and the very real possibility that his client -- a man convicted of the rape and murder of a 17-year-old college student in 1993 -- would be the 79th man executed by Virginia authorities since 1976.


The clock shows 9:12 when Tucker, who has already been working for two hours, walks into the Virginia Capital Representation Resource Center in downtown Richmond on Sept. 13. For the past two days, Tucker has lived out of a nearby hotel and worked mostly out of the center, located opposite the courthouse for the Eastern District and the 4th U.S. Circuit Court of Appeals, on East Main Street, near the state capitol.

The first thing he does as he walks into the fifth-floor office is look on the fax machine for the attorney general's reply to his appeal to the 4th Circuit, asking the court to allow Barnabei to block the proceedings on the grounds that the state had mishandled biological evidence it had tested the week before. At 9:48, Barnabei calls. Tucker scribbles away, rarely finishing a sentence as they talk. "I hope I don't see you tomorrow," Tucker says, just before hanging up. Tucker's next order of business is sifting through the rumors of the day: A journalist may have discovered a vial of Barnabei's blood missing from the state's evidence room. There's another report that the government is concealing test results from some of the genetic material examined by state forensic scientists over the weekend, and a third rumor about inconsistencies with the evidence envelope that state authorities had temporarily misplaced a week earlier. Covington associates Amy Levine and Gerard Magliocca call from Washington to tell Tucker that, contrary to what they had been told before, the DNA recently tested by the state was not from blood.

At 9:55, Tucker calls state forensic pathologist Dr. Paul Ferrara to find out if any of the rumors are true. Minutes later, Frank Slaton, Barnabei's private investigator, calls about the evidence envelope. Slaton is followed by Tony DiPiazza, a Barnabei supporter from New York, demanding that Tucker hold a press conference immediately to raise new questions about the tests. Tucker, who has not yet scheduled a press conference, tells DiPiazza in a frustrated voice: "We have to confirm these facts. A press conference can be done only once today. Nobody is coming back" for a second one.

At 10:54, the attorney general's brief arrives. It says the results of the DNA test of victim Sarah Wisnosky's fingernail clippings show "that the DNA profiles of Wisnosky and Barnabei were the only two found. ... Under these circumstances, it is nothing short of impossible for Barnabei to make the clear and convincing showing of the innocence required" to have the habeas petition granted. Ferrara calls at 11:30, giving Tucker hope. The material collected from the two fingernail clippings doesn't help his case, but it doesn't hurt. One fingernail reveals only Barnabei's skin tissue. The other has only traces of Wisnosky's own blood. "It just proves what everybody knew, and that is that they were intimate," Tucker says to a reporter on the phone. "Nothing more." He hangs up the phone and sits, pensive. "We have to figure out what to do," he says to resource center attorney Michele Brace. "Do we respond to the state? Do we hold a press conference? Do we file something to the 4th Circuit?"


At 12:17, Tucker faxes a supplement to his appeal from the denial of the first habeas petition to the U.S. Supreme Court, arguing that the newly tested DNA evidence is inconclusive and leaves unanswered questions about the case.

At 12:33, Barnabei calls, asking Tucker to call the governor about the rumors regarding the new evidence. "It's important the governor knows the press is on this," Tucker tells Barnabei. "But I don't think the governor is going to do anything." A television news team from the ABC affiliate walks through the door at 12:44. "Is Seth here?" the reporter asks, believing Tucker, working from the front desk, to be the receptionist. Tucker identifies himself. The reporter confirms that Gov. Gilmore has said that Barnabei's blood was found under the fingernails, when in fact it wasn't.

"Now we have a story," Tucker says. He then asks the reporters in the office, "What's the latest I can hold a press conference?" One answers, "Two o'clock." The constant media attention as Tucker occupies himself with phone calls and drafting, reading, and faxing documents takes him by surprise. "I thought this would be boring for the press," he says. He heads for the press conference at the steps of the federal courthouse, where he assails the state's evidence. Tucker's press conferences are aggressive. It's a skill he developed out of necessity, not enjoyment. He returns to the office at 2:40 and begins the second petition for certiorari to the Supreme Court.

At 3:14, he calls Linda Goldstein, a New York partner at Covington who has worked on the case with Tucker. They decide to file a clemency petition even though the governor said in a press release on Monday that he would not consider clemency. At 3:22, a Fox News station calls for a statement. At 3:39, Channel 8 calls, wanting to profile the Italian journalists following the case. Then DiPiazza calls, wanting to know how the press conference went. Tucker says it went well, adding, "It may have been our last attempt to embarrass the governor into doing the right thing." At 3:53, a fax comes over, revealing that the 4th Circuit affirmed a lower court's dismissal of Barnabei's claims. The ruling is based on procedural grounds. "It could have been worse," Tucker says. "If we lost on the merits, we would have no grounds to seek cert in the Supreme Court." Barnabei calls again at 4:57, and Tucker delivers the bad news but says the press conference was successful. "You'd have been proud of me," Tucker says to Barnabei.

At 5:12, Levine calls Tucker to tell him that Barnabei's ex-wife Paula Barto, who testified against Barnabei during the sentencing phase of his 1995 trial, is hoping their 11-year-old son might speak to his father before he dies. Later, Tucker calls Magliocca and Levine back, asking them to help get Barnabei on the phone with his son. Levine can't get past the man answering the phone at Barto's house, who threatens to sue if they call again. "We need to organize this so she can pull the kid out of school tomorrow," Tucker says to Levine. "It may be the boy's last chance." Barnabei never spoke to his son again.

At 6:27, Tucker faxes a round of edits of his latest Supreme Court petition to his associates in Washington. For the first time, Tucker makes small talk with his colleagues on the phone. For them, the case has been a crash course in legal writing. "I saw the time on your e-mail last night. You must be beat," Tucker says to Magliocca. "The petition looks good. This should capture their attention." At 7:00, Tucker and Brace leave for an hour. They nurse a beer over dinner, and cathartically talk about other cases. At 9:08, Tucker begins reading the petition before sending it back to Magliocca. He leaves for the hotel, where he stays awake until 2 a.m. waiting for Magliocca to fax the final version. Unbeknownst to Tucker, the hotel desk received a copy at 11:30, but didn't notify him.


Brace gets to the office before Tucker, fielding Barnabei's call. Tucker arrives moments later. "I'm going to write a letter to the governor, requesting that DNA testing be done after the execution, if there is one," he says. He doesn't get far composing the letter before the fax arrives from the Supreme Court, denying Barnabei's first petition for cert. Later, Tucker describes the moment as a punch to the stomach. Tucker looks to Brace and asks, "Should I call Derek now or wait -- " She cuts him off. "Call now," Brace says. Tucker closes the door behind him. The conversation doesn't last long. "It was the toughest call I've ever made," Tucker says.

At 10:24, he calls Barry Scheck, hoping the high-profile lawyer will continue to fight for the cause, to keep the evidence from being destroyed. Court TV calls Tucker at 11:07 to ask about doing a package before the execution. Tucker suggests a replacement: "What about Alan Dershowitz. If he'll do it. ... Before the execution, I just don't think I'll be up to it." It's the first time he doesn't add, "If there is an execution." Moments later, Tucker is on the phone with Dershowitz, who agrees to go on Court TV. Tucker runs down the facts of the case and adds that Barnabei is a charming and articulate man, which is one reason why the case has garnered so much attention.


At 12:19, the resource center is notified that Walter Mickens Jr., another death row client, has been granted a new trial by the 4th Circuit. It's a bittersweet victory. The lawyers at the center keep a bottle of champagne in the refrigerator for such occasions. It's been there for several years, but will have to be drunk another day. Tucker calls Levine at 1:59 to file the response to the attorney general's Supreme Court brief in favor of going forward with the execution. Knowing the brief will not be successful, Tucker does not wait for the court's response. "I wanted to get down to the prison," he says later. "I felt like I was wasting time because I wanted to spend time with Derek. But I had to do it for Derek and myself, so that I knew that I did everything I could to increase his odds." An hour later, Tucker walks over to the governor's office, delivering the letter requesting post-execution DNA testing. At 4:15, Tucker leaves for Jarratt, where the Virginia death house is located. He doesn't wait for the Supreme Court ruling on the second petition.


The ride to the Greensville Correctional Facility from Richmond takes about an hour. The guards tower over Tucker as he enters the prison. It takes 30 minutes for guards to process Tucker and pat him down before he sees Barnabei. Shortly after Tucker joins Barnabei, Tucker learns on the six o'clock news that the governor has denied the clemency petition. Around 7, the prison operations manager pulls Tucker aside and tells him the Supreme Court has denied the second cert petition. "It didn't even phase me," Tucker says later. "I knew it was over when they denied the first request."

On the drive home from Jarratt, at about 10 p.m., Tucker describes his last few minutes with Barnabei as being alternately humorous and philosophical. "It was a good time together," Tucker says. "Not a good time, but good time." Barnabei held a phone the entire time, his mother on the other end. Barnabei wrote out a will in front of Tucker and prepared his final statement for Tucker to read after the execution. He selected a passage from Psalm 55, verse 18. Tucker told him he would say the Shema, a Jewish prayer, during the execution. Barnabei asked him if he wouldn't mind saying it in front of him, too. After Tucker was led to the execution viewing room, the drapes were drawn and he could hear Barnabei, through the glass, saying the psalm: "He hath delivered my soul in peace from the battle that was against me: for many were with me." At the same time, Tucker quietly recited the Shema. Tucker says it will be a while before he takes another capital case and will likely never take another one in Virginia.