Newport News, insurers pay $2 million to settle Boyce case

Jan. 12--NEWPORT NEWS -- The City of Newport News and its insurers paid $2 million to settle a lawsuit brought by a man who spent nearly 23 years in prison on capital murder and robbery charges before being released nearly three years ago.

A jury trial was set for December in the case by David W. Boyce, who claimed police officers conducted a "reckless" investigation against him in 1990, withholding crucial evidence and "robbing him of over 22 years of his life and freedom" for "a crime he didn't commit."

The $2 million settlement -- which avoided a two-week trial with dozens of witnesses -- is the largest by the city to resolve litigation in at least five years, a city lawyer said.

The Daily Press filed a request under the Virginia Freedom of Information Act to get the dollar amount paid.

Chief Deputy City Attorney Darlene P. Bradberry said that of the $2 million, the city paid $1.025 million out of its self-insurance fund, while the city's insurance providers covered the other $975,000. The city wired its portion of the payments on Dec. 14, Bradberry said.

Boyce's initial lawsuit, filed in May 2014, had sought $25 million in damages. An amended complaint did not include that figure, asking that the dollar amount be "determined by the jury at the time of trial."

Boyce, 45, who now lives in the Richmond area, said he and his family "are very happy that all of this is finally over."

"We wanted to go into the new year without being fettered," he said. "There was a possibility that the trial was going to be pushed even further into this new year with delays. And we did what was best for our family. We're happy to be able to just go on with the rest of our life now."

Boyce's lead attorney, David E. Koropp of the Chicago law firm of Honigman, Miller, Schwartz and Cohn, did not return phone calls Monday.

For the city's part, Bradberry said that "litigation is full of risk," and the settlement was a way to avoid it.

"The City is pleased that the matter was able to be resolved between the parties on mutually agreeable terms given the totality of the circumstances," she wrote in an email. "The settlement does not reflect any admission or suggestion of misconduct on the part of the City or the individual defendants."

In a phone interview Monday, Bradberry said that without the agreement, the lawsuit "probably wouldn't have been resolved for a very long time."

"For the city, it was a business decision," she said. "There was the potential for many years of litigation, which would have been very expensive. This was a very expensive case to defend. It was expensive for both sides."

As of Monday, Bradberry said, the city has spent or been billed more than $900,000 in legal costs and fees to defend the case. After the suit was filed in 2014, the city hired several outside attorneys to represent the city and past and present police officers.

Even if the agreement wasn't reached, Bradberry said, the trial was likely to have been postponed. That was because of a court scheduling conflict in which two criminal cases were likely to bump the civil case from the docket.

And no matter which side won at trial, she said, either side could have appealed, "and the odds are good" that would have happened here.

"So we have the cost of preparing for trial, having the case bumped and preparing for another trial, and there was always the possibility for appeal," Bradberry said.

Adding more complexity was that various insurance firms that covered the city since 1994 were in dispute over how much they were on the hook for. One of those firms had asked a judge to rule on whether its past policy mandated coverage.

The City Council was notified of the Boyce settlement in a Nov. 13 email, Bradberry said. It was not immediately clear when the council approved that payment, which by city code must be done for all settlements above $250,000.

Asked where the $2 million ranks in terms of prior city settlements, Bradberry said it was the largest one related to litigation since she began working for the city five years ago. She said she had not surveyed earlier settlements and is not familiar with agreements resolving construction disputes.

It was not immediately clear how much of the $2 million went to Boyce and how much went to his lawyers.

Such breakdowns are typically part of private deals between attorneys and clients before lawsuits are filed. One common scenario, for example, is that the client gets two-thirds of a settlment or verdict amount, while the lawyers get the other one-third.

Though Bradberry provided the dollar amount paid, she declined a request for a copy of the settlement agreement itself, citing an exemption under the state's open records law for "legal memoranda or other work product compiled specifically for use in litigation."

The case's lead defendant, former Newport News police detective Thomas Bennett -- now Suffolk's police chief -- did not return a phone call Monday. In court documents, Bennett has denied all allegations against him, and asserted that Boyce committed the crime.

In 1991, Boyce, then 20, was found guilty of capital murder and robbery in the May 1990 slaying of Timothy Kurt Askew at an Oyster Point motel, and sentenced to two life terms.

But in April 2013, a federal judge tossed both convictions, ruling that Boyce got an unfair trial in 1991.

The reversal came in large part on the basis that a crucial piece of evidence -- a Polaroid picture -- was never shared with Boyce's trial attorney, Thomas K. "Tommy" Norment. The picture showed Boyce with short hair, rather than the "shoulder-length" hair worn by a suspicious man lurking near the crime scene that night.

At trial, a Newport News police technician, Patty Montgomery, testified that Boyce had long hair when he was first brought in for questioning on the day of the crime. Her testimony provided a crucial link at trial between Boyce and the "long-haired man" at the scene.

But that testimony was disproved by the Polaroid, which finally surfaced from a police file 18 years later.

Two rounds of DNA testing on crime scene evidence -- in 2004 and after Boyce's release in 2013 -- found no connection to Boyce. The analysis did, however, indicate the presence of an unknown man.

In 2004, Herman P. Elkins, a jailhouse informant who testified against Boyce at trial, called Boyce's then lawyer and said he lied at the trial at the behest of police. (Elkins later recanted his recantation, asserting he told the truth).

In September 2013, outside prosecutors declined to retry Boyce. At a hearing at that time, Norfolk Circuit Court Judge Mary Jane Hall said her "review of the record" indicates that "the wrong person was prosecuted for this crime" and "the real murderer of Mr. Askew ... has not in fact been brought to justice."

Boyce sued in 2014, accusing Bennett, Montgomery and other officers of conducting a "reckless" investigation.

"Even more tragically, Boyce's wrongful conviction and continuing incarceration were no inadvertent mistake," the suit asserted.

Aside from the contention that police "concealed" the Polaroid, the suit asserted that police homed in on Boyce to the exclusion of other leads, used a bad informant, ignored crucial forensics, failed to properly interpret a bloodhound's tracking and focused on a knife as the murder weapon that didn't match Askew's wounds.

Dujardin can be reached by phone at 757-247-4749.

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