COVINGTON — A man who spent 28 years in prison for a murder he says he didn’t commit will have to wait a little longer to confront the former Newport police officers who oversaw his case.
A jury was set to decide the federal wrongful conviction lawsuit of William “Ricky” Virgil against the City of Newport and two former Newport police officers at a trial beginning on August 23, which is nearly five years after he filed the suit.
But U.S. District Court Judge David Bunning agreed on July 27 to delay the case, likely for at least a year, so the officers can appeal. They say qualified immunity shields them from liability and a jury trial. Now it is up to the U.S. Sixth Circuit Court of Appeals.
A judge granted Virgil a new criminal trial in 2015 after favorable DNA evidence was discovered. A grand jury declined to indict him a second time on murder charges after a key witness recanted in 2016, and prosecutors dropped all charges.
Soon after Virgil filed a civil suit against police detectives and three Tri-State cities, seeking monetary damages for the years he spent in prison. The case has been slowly moving through the federal court system for five years, so far.
Virgil’s attorneys described the latest appeal as “frivolous” and a delay tactic in recent court filings.
“It has been almost 35 years since Mr. Virgil was wrongfully convicted," wrote attorney Elliot Slosar. "He turns 70 years old this year. It is not inconceivable that delaying his trial could deprive him of the ability to pursue his case with the current vigor he still has, or that he could pass before the case comes back. People do not live forever. Justice delayed is justice denied. Justice frivolously delayed is even worse.”
Attorneys for the city of Newport argued that going forward with the trial while a higher court is simultaneously ruling on an appeals issue “would be unfairly prejudicial” and very expensive for the city. The judge agreed.
Virgil’s attorneys are with the Chicago firm Loevy & Loevy, which is well-known for winning multimillion-dollar verdicts in police misconduct and wrongful conviction cases nationwide. But they insist this case is not about the money.
“There is a genuine constitutional value for Mr. Virgil to have his day in court after the sham proceeding that occurred in 1988," Slosar wrote. "There is a genuine societal value to airing dangerous police procedures so that society can learn from it … and there is a genuine psychological value in the verdict that (Virgil) expects to receive, acknowledging the wrong which has been done him.”
Attorneys on both sides did not respond to WCPO’s request for comment on this case. But extensive court filings reveal what happened more than 34 years ago and in the years since then.
On April 13, 1987, a coworker discovered the body of Retha Welch, a 54-year-old psychiatric nurse who worked in jail ministry, in the bathroom of her Newport home. She had been raped, stabbed 28 times and severely hit on the head.
Welch had met Virgil while ministering inmates. He had been released from prison a few months before her death, and said the two had a sexual relationship.
Less than two weeks later, Newport police arrested Virgil for Welch’s murder. In 1988, after a trial based entirely on circumstantial evidence, the jury convicted him.
Virgil had always maintained his innocence. Attorneys for the Kentucky Innocence Project took an interest in Virgil’s case and won a motion for DNA testing in 2010.
“DNA testing from the victim’s vaginal swab excluded Virgil as a contributor and … hairs recovered at the crime scene were found not to contain Virgil’s DNA,” according to a recent order on a motion for summary judgment, allowing the case against two former Newport officers to proceed to trial.
Based on this new evidence, a Campbell County Circuit Court judge granted Virgil a new trial in December 2015.
Then in August 2016 a key prosecution witness, Joe Womack, recanted his testimony that Virgil had confessed to him about murdering Welch while the two were inmates together. In an affidavit, he wrote that then-Newport police detective Norman Wagner had supplied him with details of the murder.
“Womack further alleged that Wagner had coerced him into testifying by threatening to charge him with accomplice liability," according to a June order by Bunning. "According to Womack, Wagner paid him in cash in advance of his testimony and prosecutor Hoot Ebert promised to write a letter in his favor to the parole board.”
After Womack repeated these allegations to a grand jury in December 2016, the grand jury declined to re-indict Virgil, and weeks later prosecutors dismissed all charges.
When Virgil first filed his lawsuit in 2016, he sued the cities of Norwood, Cincinnati and Newport, as well as officers from all three departments for their roles in a joint investigation into a possible serial killer. He alleged they withheld and fabricated evidence, and that the city of Newport failed to train its officers.
As the case moved through the court system, Bunning dismissed claims against the cities of Norwood and Cincinnati, and all law enforcement except for former Newport officers Wagner and Marc Brandt, “who the record shows may have withheld exculpatory evidence relating to alternate suspects and pretrial payments to a witness.”
Brandt led the investigation into Welch’s murder until May 1987, when he left the police force to work in the private sector. Wagner took over as lead detective until he later resigned in December 1987.
Both officers filed their notice of appeal on July 12, the same day as an eight-hour unsuccessful mediation to try to settle the case, according to court filings.
“What defendants leave out is that the notice of appeal was communicated to plaintiff with a grossly insufficient final offer," Slosar wrote in a response opposing the trial delay. "Defendants’ message was clear: plaintiff could either take a pittance now, or defendants would force plaintiff to wait to get justice.”
