Boyce

A federal judge gave the state 120 days to retry David W. Boyce or set him free.

A federal judge in Richmond has vacated a 1991 capital murder conviction against a Newport News man and given the state 120 days to retry him or set him free.

David W. Boyce was convicted of the May 19, 1990, robbery and slaying of Timothy Askew in a hotel in Newport News. He is serving two life sentences at Augusta Correctional Center.

It is the third Virginia capital murder conviction overturned by a federal judge since July 2011.

“We are overwhelmingly happy with this result,” David Koropp, one of Boyce’s lawyers with Winston & Stawn in Chicago, said Tuesday. Koropp said that the state also has the option of appealing.

A spokeswoman for the Virginia Attorney General’s office said “once we have reviewed the written opinion, we will make a decision regarding next steps.” It appears from court filings that the office opposed Boyce’s appeal on the grounds it was procedurally barred because it should have been filed earlier.

U.S. District Judge James R. Spencer’s memorandum opinion issued Tuesday was not available, but his final order earlier in the day denied the state’s motion to dismiss and granted Boyce’s appeal, tossing out the convictions.

Pleadings show that in 1990, Boyce, then 19 and recently separated from his wife, shared an efficiency with Askew.

Askew’s body was discovered in another room that Askew rented. He had been stabbed 16 times and sexually assaulted. Evidence from the scene, blood, hair and semen, failed to link Boyce to the crime.

Boyce was picked up by police at a restaurant where he worked soon after the body was discovered and a Polaroid photograph was taken of him. He was arrested and charged with the murder five days later.

The commonwealth’s case against Boyce depended in large part on the testimony of a crime scene technician who fingerprinted Boyce the day of the murder. She testified Boyce had almost shoulder-length hair matching the description of a suspicious man a hotel clerk had seen leaving the vicinity of the crime.

As the Polaroid photo showed, Boyce had short hair. The photo, however, was never disclosed to Boyce — who initially forgot it was taken. Though sought by Boyce in the mid-1990s, police did not turn the photo over until 2008.

In pleadings filed with Spencer, Boyce’s lawyers complained about the state’s plea for “finality” in the case. “Boyce is not to blame for whatever burdens may result from finally providing him a fair trial,” they wrote.

In July 2011, a federal judge in Norfolk vacated the 2002 Prince William County capital murder and death sentence against Justin Wolfe, whom authorities are seeking to retry.

And last March, a federal judge in Roanoke, citing police and prosecutorial misconduct, tossed out a capital murder conviction and life sentence against Michael Wayne Hash for a 2001 capital murder in Culpeper. Hash will not be retried.

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