In 2010, the Linda Smith, the supervisor of DPA’s Kentucky Innocence Project, wrote a letter to the Campbell Commonwealth’s attorney asking for permission to perform DNA testing on evidence related to the trial of William Virgil, which was at the time in the possession of the Campbell Circuit Court Clerk’s office. Mr. Virgil had been convicted of the brutal murder of Retha Welch, a psychiatric nurse at the VA hospital, based principally on snitch testimony from a person who had been thoroughly discredited in later proceedings. Ms. Smith pointed out that DNA testing was not available at the time of Mr. Virgil’s trial, and that his case was not a strong one. There was a bloody palmprint which had been left at the scene of the offense by somebody other than Mr. Virgil, and the evidence established that Ms. Welch had been sexually active shortly before the offense. As the Commonwealth’s theory was that Mr. Virgil and Mr. Welch had sex shortly before the murder, testing this evidence could conclusively establish Mr. Virgil’s guilt or innocence. Even though the testing would be paid for by grant funds, the Commonwealth’s attorney refused to grant permission to test.
What followed was an extraordinary journey through the courts, the legislature, and three DNA labs, which on Friday, December 18, 2015 resulted in an order granting Mr. Virgil a new trial. When it became clear that testing would not go forward by agreement, Ms. Smith filed a motion on Mr. Virgil’s behalf requesting permission from the Court. That motion was ultimately denied because Kentucky’s DNA statute at the time did not authorize DNA testing in non-capital cases. In 2013 a bill sponsored by Rep. Johnny Bell and Sen. John Schickel changed the statute to authorize DNA testing for non-capital offenses. Later that year, the Kentucky Court of Appeals vacated the order denying testing and remanded the case for reconsideration under the new statute, and testing was ordered shortly thereafter.
More surprises were in store. When the lab finally received the evidence from the clerk’s office, they opened envelopes marked “rape kit”, “vaginal swab”, etc. only to find that the envelopes were empty, because the material had been consumed by the testing which had been conducted at the time of the offense. While there was some evidence which could be tested and the results of those tests were helpful, without a rape kit result it was unlikely to result in a new trial. Then, KIP learned that during the original testing process slides had been made of the material on the rape kit. Fortunately, those slides were still in the custody of the Kentucky State Police Crime Lab, and those slides were sent for testing. The testing revealed that Ms. Welch had been sexually active with three different gentlemen in the days leading up to the offense, but Mr. Virgil was not one of them.
Even in the face of this evidence, the Commonwealth contended that hairs found on Ms. Welch might still belong to Mr. Virgil and if so those would establish his involvement in the offense. The hairs were tested using mitochondrial DNA testing, and the results were that none of the hairs matched Mr. Virgil. Faced with a crumbling case, the Commonwealth conceded that the evidence was sufficient to warrant a new trial. However, based on one item which showed that at some point in the past Mr. Virgil had sexual relations with Ms. Welch – testing which proved nothing we did not know already, as Mr. Virgil’s past relationship with Ms. Welch was how he became a suspect – the Commonwealth announced its intention to retry Mr. Virgil and argued that Mr. Virgil should be held on at $1,000,000 bond prior to that trial.
On Friday December 18, 2015, after 28 years in custody, the Campbell Circuit Court ordered Mr. Virgil released from the Kentucky State Penitentiary and returned to jail. He was released from jail on December 24, 2015.