Phillips was released from prison Sept. 25, 2018 after twenty-seven and half years for a crime he says he did not commit. The Innocence Project at UVA School of Law has been working many years on Phillips's case. Phillips was out on parole but is working to fully clear his name. (L. Todd Spencer)
VIRGINIA BEACH
The 11-year-old girl walked to the front of the courtroom in June 1991, wearing a blue jumper with fish on it, a white shirt underneath.
A plastic headband held back her long, blonde hair.
As she stepped onto the witness stand, her father was escorted out. It's what she'd wanted. She didn't want him to hear her testify about how she'd been brutally raped and beaten 10 months earlier by a strange man in a neighborhood park.
When the time came, she pointed to a black man in the courtroom — just like she'd been instructed to do by prosecutors, she recalled in a recent interview.
But perhaps the most vivid image in Mae Cox's mind after all these years is the chaos that swept through the courtroom when the jury announced its verdict and recommended punishment. They had found Darnell Phillips guilty of the girl's August 1990 rape, sodomy and malicious wounding, but acquitted him of attempted murder. Their suggested sentence: 100 years in prison.
"Judge please … I didn't do it," the 19-year-old cried out as sheriff's deputies carried him into custody, according to a Virginian-Pilot story published the next day.
His family collapsed into tears. "Why, why?" they shrieked at police detectives nearby.
Cox was quickly escorted out. In the hallway, her father thanked and kissed the prosecutors, both women.
"Everyone told me what a good job I had done," she said recently during a phone interview from her home outside Atlanta, where her family moved not long after the rape. "I was reassured that I had made the right decision."
But she couldn't stop thinking about the reaction from the man and his family, which she said stunned and confused her. Why were they acting that way if he was guilty?
For Phillips, now 46, it marked the beginning of a decades-long struggle to prove his innocence.
"That was a really deep, dark time," he said. "I was just a teenager. I couldn't rationalize why that was happening to me."
Since that day, he and his family have spent countless hours and tens of thousands of dollars on lawyers and scientific testing, trying to clear his name.
Finally, on Sept. 25 of this year, he was released from prison. But it wasn't as an innocent man.
He'd been granted parole, thanks largely to a team of lawyers and students from the Innocence Project at the University of Virginia School of Law who took on his case after Phillips' oldest sister showed up at their office with a box full of documents and a plea for help nearly a decade ago. Virginia abolished parole in 1995, but those convicted before then are still eligible.
"We knew justice was slow," said Phillips' sister, who asked not to be identified, just hours after his release. "Did we think it would take 27 years? No."
Phillips is thrilled and thankful to be free, but his fight is not over.
The convictions remain on his record. He also was required to register as a violent sex offender, limiting where he can go and what he can do.
While Cox helped put him away, she now says she believes he's innocent — and she wants to help him prove it.
The Virginian-Pilot typically does not name victims of rape, but Cox, who is 38 now, consented to being identified by her maiden name.
Four jurors contacted by The Pilot who agreed to talk about the case also have begun to question their verdict.
"It's very, very upsetting," said one female juror, now 80 and living in Florida, of the possibility that they may have convicted an innocent man and sent him away for so many years.
"This is so sad," she said. "I am just so sorry."
It was lightly sprinkling on the evening of Aug. 8, 1990, when the 10-year-old girl went out for a bike ride alone, according to court records.
She was staying at a friend's house in the Timberlake community but had grown bored. She rode to a neighborhood park at about 6:30 p.m., where she chased some ducks.
At some point, she slipped and hurt her knee, Cox recalled. She was walking her bike across a narrow, wooden bridge when a man who'd been sitting on a nearby picnic bench walked up close behind her and made her feel nervous.
"I told him he could go around me," Cox said. Instead, the man grabbed her and forced her to the water's edge below.
There, he raped and beat her. She remembers him punching her so hard, and so many times, that one of her Smurf character earrings became embedded in her neck, behind her ear. She drifted in and out of consciousness.
When the attack was over, the man threw her into the water and ran.
A 17-year-old girl testified at Phillips' trial that she saw a black man run past who was wearing a white shirt and carrying a black hat. Then, she saw the girl. She was screaming and crying. Her hair was matted and wet, her face bruised and bleeding. A woman who lived nearby wrapped her in a flannel sheet and called an ambulance. When police arrived, she described her attacker. A black man, about 6 feet tall, with a heavy build and out of shape. He was wearing a white shirt with a green "42" on it, had a gold tooth on the left side, a hoop earring and a black hat with an emblem she believed was red. A description was soon broadcast to other officers.
A short time later, a patrol officer came across Phillips, then 18, and his 15-year-old friend, Michael Norfleet. The two were standing outside Norfleet's house, about a half mile from the crime scene. Norfleet's mother was suffering from late-stage brain cancer then, and he usually stayed close to home, he said during a recent phone interview.
The teens told the officer they saw a man run by who resembled the one Cox had described.
The officer noted that Norfleet was wearing a white shirt, but there were no numbers on it. The clothes Phillips had on — a brown and black shirt and black pants — didn't match the description. But a few other things about him did line up: He stood at about 6 feet, had a black hat with a red Chicago Bulls logo, and a gold tooth on the left side.
The officer drove away but came back about a half hour later to take a picture. He asked Phillips to put the hat on for the instant photo, which was shown to Cox while she was still at the hospital.
She told the officer she couldn't be sure about the man, according to court records. But she recognized the hat.
Flawed photo lineups
Detectives showed her two photo lineups in the next couple of days, with a picture of Phillips included in one. Once, they had her father wake her at 3:15 in the morning to look at the pictures, according to court records. But she never picked one, she said.
Cox, who is white, said it was difficult to distinguish from all the photos she was shown.
"I didn't grow up around black people," she said.
Besides, she said, it was hard to recall her attacker's looks. One of her eyes had been beaten shut and she was knocked unconscious during the assault.
Brandon Garrett, a Duke University law professor who's done extensive research and written a book on eyewitness identifications and police lineups said it's not surprising that she had trouble identifying her attacker.
Studies on cross-racial identifications have shown it's difficult for eyewitnesses to distinguish members of the opposite race. And while some might assume that a victim would remember the face of a person who'd committed such a vicious attack, studies have shown the opposite to be true, Garrett said.
"It's generally hard for people to remember the face of a stranger," he said. "When you add stress and trauma to the situation, it makes it even harder."
Identifications made by children also tend to be problematic, Garrett said, because they're so easily influenced by other people's expectations.
That appears to have been true in Cox's case. She said she came to believe Phillips was guilty based on what police told her. For instance, the detectives said her blood had been found on his underwear, and that he had a history of doing bad things to children, she said.
Garrett described the police's decision to show her a single photo of a suspect – wearing the same kind of hat she described – as troublesome. The fact that she didn't recognize him just hours afterward should've signaled that he likely wasn't the perpetrator, he said.
"That's an enormous red flag because memories don't improve over time."
Phillips was arrested two days after the assault and taken to police headquarters for a late-night interrogation.
Two detectives spent four hours questioning him but were unable to get a confession, according to a June 12, 1991 story in The Virginian-Pilot. Detective Shawn Hoffman, who worked in homicide, then asked if he could have a go at it.
Hoffman, who still works for the police department, testified at trial that Phillips confessed to him within minutes, sometime around 5:30 a.m., The Pilot story said.
But the detective told jurors he didn't write down anything because he didn't have a notebook with him. Nor did he record the interview. He jotted some notes afterward, he said, but later destroyed them. He never got a signed statement from Phillips.
A child testifies
The trial began 10 months after the attack — on June 11, 1991 — in Virginia Beach Circuit Court. It lasted three days.
Phillips' parents hired attorneys J. Hugo Madison and Robert F. Hagans Jr. to represent him. Madison, who was also a Norfolk State University board member and well-known activist, died in 1997. Hagans is now a Virginia Beach District Court judge.
Both prosecutors on the case also went on to become judges. Patricia West, who served on the Circuit Court for more than a decade and later as a chief deputy attorney general, is now a professor and associate dean at Regent University School of Law. Pamela Hutchens served one term as a district court judge but wasn't reappointed. She was replaced in 2015 by Hagans, one of Phillips' attorneys.
Neither of the former prosecutors returned messages seeking comment for this story. Hagans declined a request for an interview, and so did local police and prosecutors, who said they couldn't discuss it while it's still active.
At the time of the assault, Cox's parents were divorced and she and her brother were being raised by their father. He attended the trial, but her mother didn't.
"Testifying was just as bad as the rape," she said. "I felt so much shame. I felt like I was marked dirty."
The prosecutors "prepped" her beforehand, telling her "what to say and what not to say," she said. "I felt like a puppet. I did everything they told me to do."
During their preparations, the prosecutors told Cox there'd come a time when she'd have to point to Phillips in the courtroom. They described where he'd be sitting, so she'd know where to look for him, she said. Being a military child, she always did what people in authority told her to do, she said.
"I was told to pick him and I did."
The story in The Pilot described her testimony as "mechanical" and noted that she didn't cry or otherwise become emotional. Still, it was powerful, according to the jurors who spoke to the Pilot.
"That's something you never forget," said Mary Hodgson, now 55 and living in North Carolina. "What that poor girl went through."
Cox wasn't the only star witness. Myron Scholberg, then a well-known hair analysis expert and former head of the FBI's microscopic hair comparison unit, also was key to the guilty verdict, jurors said.
Scholberg's testimony centered on the one piece of physical evidence that prosecutors said tied Phillips to the crime: a hair found on the sheet wrapped around Cox after the attack. Scholberg told jurors that the hair was similar to ones taken from Phillips after his arrest.
"I thought it was very convincing," said one juror who asked not to be identified. Now 76, he was a 49-year-old engineer and father of twin sons the same age as Phillips when the case was tried. "That and the girl's testimony were very convincing because she positively identified him in the courtroom."
But DNA testing conducted on that same hair years later — which Phillips' family sought and paid for — proved it wasn't his. In fact, the report concluded that the person who produced it had a Caucasian mother, said Deidre Enright, one of Phillips' Innocence Project lawyers.
The microscopic hair comparison science presented at his trial – and thousands of others across the country – has since been discredited, first by a 2009 report by the National Academy of Science, and later by a joint U.S. Department of Justice and FBI investigation. The two agencies conceded that their internal review showed that FBI hair examiners offered flawed or exaggerated testimony in more than 95 percent of the trials they participated in before December 1999.
"Hair is not like fingerprints," then FBI Director James Comey wrote in a letter to governors across the country in June 2016 to alert them to the issue. "Unfortunately, in a large number of cases, our examiners made statements that went too far in explaining the significance of a hair comparison and could have misled a judge or jury."
Scholberg, the hair examiner in Phillips' case, is 85 now and retired. He didn't return a phone message left at his Williamsburg home. At least one other case in which he testified has ended in an exoneration and multi-million dollar payment to the man wrongly convicted. In that one, a Washington man served 22 years before DNA tests proved hair and semen found at the scene didn't come from him.
The last prosecution witness was Detective Hoffman, who explained how his questioning tactics were different from other investigators. He used compassion to get suspects to own up to what they had done, he said.
When Phillips took the stand, he repeatedly denied confessing or assaulting the girl. His friend, Norfleet, served as his alibi witness, telling jurors the two were at his house when the attack occurred.
A plastic surgeon who testified for the defense said Phillips couldn't have been wearing an earring that day: His ear had been pierced at one time, but the hole had been closed for years.
___
A jury's decision
Phillips' fate hung on a jury of six men and six women — all white.
The most compelling evidence was the expert's report about the hair and the girl's identification of Phillips, the jurors who spoke to The Pilot said. Only one remembered testimony about a confession.
"It was helpful, but it didn't really impress me that much," said the juror who was an engineer and the only one to remember it. He did think it was strange that there was no written or recorded evidence of it. "I thought they tape recorded everything."
The juror who is 80 and lives in Florida – and also asked to remain anonymous – said the fact that Phillips had a gold tooth like the one the girl described was profound. "That, to me, was the main thing," she said. "I vividly remember that."
Diane Vandergiessen was in her 20s when she was chosen to serve on the panel. "I definitely remember the hair," she said. "And the girl's testimony. Those were the two biggies. And the lack of accountability for him."
Vandergiessen, who was a special education teacher in Norfolk at the time, wasn't particularly swayed by Phillips' gold tooth.
"They were all over the place back then," she said. "It was sort of a status symbol."
The fact that Phillips had the same kind of hat as the perpetrator, and was seen nearby shortly afterward, were key elements for juror Mary Hodgson, who was pregnant then.
But it was Cox's testimony that truly convinced her, she said.
"She got on that witness stand and she pointed him out," Hodgson said. "It was the most honest thing I've ever seen."
All four of the jurors who were interviewed were upset to learn that a later DNA analysis of the hair concluded it wasn't from Phillips and that the victim now says he wasn't the perpetrator. Each said they wouldn't have convicted him if they'd known that.
"I feel bad now," said the engineer on the panel. "It sounds like he was railroaded." After the trial was over, Phillips' lawyers kept fighting to clear his name.
In October 2005, they obtained a court order requiring DNA testing on all biological evidence in the case, but prosecutors told the court that it had been destroyed.
Ten years later, the Innocence Project learned a crucial fact: That evidence had not been destroyed and was still stored at the courthouse. But it was never tested for DNA — a relatively new science at the time.
Two labs were unable to find any male DNA. But in 2017, a California lab located male "touch DNA" — evidence left by skin cells — on the victim's clothing and ruled out Phillips as the source in three of four samples found. The one that didn't exclude him also could have come from one in 23 of all men in the general population, the report said.
Shortly afterward, one of Phillips' Innocence Project attorneys visited Cox and obtained an affidavit from her saying she may have identified the wrong man.
On Oct. 30, defense lawyers asked a three-member state Court of Appeals panel to declare Phillips innocent. The court denied their request earlier this month.
The reasons? The DNA evidence didn't completely exclude him; the judges didn't view the victim's statement as recanting her testimony; and Phillips' proximity to the crime and the fact that he wore a hat and had a gold tooth like the victim had described.
On Thursday, the state Supreme Court refused to hear Phillips' innocence claim because it only considers DNA results obtained from the state Department of Forensic Science.
Now, his only hope for exoneration rests with the governor, whom he has asked for a pardon.
___
'Survival mode'
In prison, Phillips said he made the best of his time. He obtained his GED and ministry license, and earned community college credits as well as certifications and occupational job titles in at least 15 different areas. He led Bible studies, taught himself to play keyboard, studied real estate, wrote two books and numerous songs.
"I tried to stay positive," he said. "I tried to spend my time bettering myself and others."
He says he never had any problems — "not one tussle" — in the years he was imprisoned.
The lack of control and freedom were some of the hardest aspects to deal with, he said. And the food: "I wouldn't give that stuff to an animal."
Being away from his loved ones was especially difficult. In the 27 years he was imprisoned, three grandparents, several aunts and uncles, and two cousins died. Two nieces were born.
The toughest day was in 2009 when his family came to tell him that his father had died. About six months before his release, his mother suffered a stroke.
Life has been difficult for Cox, too.
Her father moved her and her brother to Atlanta four months after the attack, hoping the change would help.
"He couldn't stand the constant reminder of it," Cox said. "He felt like he had let his little girl down."
Cox said she attempted suicide when she was just 11. Her father placed her in foster care not long afterward.
Despite all the trauma that caused her, she doesn't blame him. "My dad did the best he could with what he had. He just didn't know how to handle it."
Cox later turned to drugs and alcohol to cope. At 17, she was about to be placed in a group home when her mother came and got her and brought her back to Norfolk. She enrolled at Tidewater Community College and became a licensed practical nurse. She later returned to the Atlanta area.
She's been married and divorced twice now. The trauma of that day in 1990 always seems to get in the way, she said.
"It affects every relationship I have with people," she said as her voice quivered with emotion. "My guard is always up. I'm always in survival mode."
Cox said she's been off drugs and alcohol for seven months and recently graduated from a rehabilitation program. She gets some counseling, but can't afford the kind she needs. She recently tried to get some financial help from the Virginia Victims Fund but said her request was denied because of how long ago the crime occurred.
"Every day is a battle," she said. "I struggle emotionally, physically and financially. I have my whole life."
Since his release, Phillips said he's been trying to find a job and has been enjoying time with his family and fiancee. The two met in 1991 when he was out on bond awaiting trial. They kept in touch over the years, and she visited him often in prison.
He's also enjoyed learning how to use all the new technology that came out while he was incarcerated. He now has a cellphone and a laptop given to him by his defense team. He hopes to get his driver's license soon.
Phillips recently met up with Norfleet, the friend he was with the day of the assault. Norfleet lives in North Carolina, has been married 25 years and is the father of two grown children. His health is poor, and he's on oxygen therapy. In a phone interview, he reiterated his testimony at trial, saying that Phillips couldn't have committed the assault because he was with him.
Phillips and Cox also hope to meet soon. She said she has no doubt that he's innocent, and will do what she can to help prove it. "I know it in my heart," she said.
And while she's happy for Phillips and his new freedom, she said she can't help but feel envious of the help and attention he's getting as he works to put his life back together. It's also troubling to think that her attacker is still out there, she said.
"I feel like we're both victims," Cox said. "I want justice and I want things to be made right for me and Darnell."
Comments