A Polaroid photograph that sat unnoticed for nearly 18 years in a Newport News police file may free a man serving a life sentence for murder.
U.S. District Judge James R. Spencer vacated the capital murder conviction of David W. Boyce on Tuesday, ruling Boyce was denied due process because the state failed to turn over the photograph that might have proved a state witness testified falsely at his trial.
Boyce was convicted of killing another man in 1990 at a Newport News motel.
A witness said a suspicious man in the area had long hair. When police questioned Boyce shortly afterward, they took his picture. The picture shows Boyce with short hair.
Despite the photo, which was never turned over to Boyce’s defense lawyer, a police staffer testified Boyce had long hair when she took his fingerprints. Boyce was convicted in 1991.
The discovery of the exculpatory photo in 2008 may have demonstrated a violation of his rights at trial, but Boyce himself should have known about the photo, a state judge reasoned in denying his bid for relief in 2010.
Spencer disagreed. Because the prosecutor had opened his file to Boyce’s lawyer, Boyce would have had no way of knowing there was a helpful photograph still hiding in some police file.
“A mere suspicion that exculpatory evidence exists and was suppressed by the prosecution is not sufficient to bring a Brady claim, especially in light of a prosecutor’s open file certifications,” Spencer wrote.
Spencer has given the state 120 days to either retry Boyce or release him. The attorney general’s office is considering whether to seek another trial, according to published reports. The Newport News commonwealth’s attorney, Howard Gwynn, told the Daily Press he still maintains Boyce committed the crime.
Boyce’s trial lawyer, state Sen. Tommy Norment, declined to comment.