On July 23, 1976, a woman traveling on Interstate 95 through Virginia with her two sons, aged three and four, stopped at a rest area to sleep. She was awakened just before dawn by a man who said her car had a flat tire. When she opened the car door, the man forced himself into the driver’s seat with a knife and drove to a wooded area where he sodomized and raped the woman while the children remained in the car.
The man then ordered the woman to drive him back to the exit by the rest stop, where he got out and fled. The woman drove to the nearest hospital where she was treated and police were called.
The woman described her attacker as a white male, about 24 years old, with a smooth face, blue eyes, and very light brown or blond hair cut short. She said he was wearing work clothes and a baseball cap.
The woman viewed police mug shot books, but did not identify her attacker. Her three-year-old son picked out a photograph of 24-year-old Garry Diamond, who had been arrested for a similar sexual attack in June, 1976. However, the mother said her son had made a mistake because Diamond had black hair and brown eyes and a pock-marked face.
In October 1976, the officer investigating the case learned that Diamond was scheduled to appear in Prince William County Circuit Court for his trial on the June 1976 case.
In that attack, a woman told police that she was driving on Interstate 95 when a man in another vehicle pointed to her rear tire and gestured for her to pull over. The man said her tire was loose and offered to fix it. As he was replacing the lug wrench in the car after tightening the wheel, the man held up a screw driver and forced the woman into his car. He drove to another location and sexually assaulted her, then drove her back to her car and fled. The victim gave a detailed description of a bowling shirt the attacker was wearing. Diamond was arrested wearing the same shirt at a bowling alley not long after the July 1976 attack at the rest stop.
When Diamond came into court on October 1976, the victim of the July attack was sitting in the last row of the courtroom, and identified Diamond as her attacker. Prior to that, she had been shown a photograph of Diamond on at least two other occasions and had not been able to identify him.
Diamond was then charged with abducting the woman and her two sons.
He went on trial in January 1977 in Prince William County Circuit Court. The victim identified him. A crime laboratory analyst said a serological analysis of biological evidence could not exclude Diamond as the attacker. The prosecution did not disclose that the woman’s three-year-old son had initially picked Diamond, but that his mother had discounted him.
Diamond maintained his innocence. His brother and a friend testified that the three of them were fishing the day of the attack and had rented a boat before dawn so they could be on the lake when the sun rose. An owner of the boat rental confirmed that the three men were there that morning before dawn.
A judge, who heard the case without a jury, convicted Diamond of two counts of abduction and one count of abduction with intent to defile. (Years later, prosecutors have no recollection of why Diamond was not prosecuted for rape.) By then, he had been convicted of the June 1976 attack. His sentences in the two cases were combined for a total of 15 years.
Diamond repeatedly said he was innocent of the other attack. However, he did not appeal that conviction because an attorney advised him that if he won and was retried before a jury, he would face life imprisonment.
On December 14, 1979, Diamond was released from prison on parole.
In 2005, then-Governor Mark Warner ordered testing of all potentially probative biological evidence from 1973 through 1988 that could be found in Burton’s files. Evidence from Diamond’s case was discovered and was submitted for DNA testing in 2011 and 2012. By then, five other defendants had been exonerated by DNA testing of biological evidence in Burton's files: Curtis Moore
, Victor Burnette
, Thomas Haynesworth
, Calvin Wayne Cunningham
and Bennett Barbour
When the tests excluded Diamond, he was notified of the results. A re-investigation of the case was difficult because most of the court files had been lost or destroyed. The victim in the July 1976 attack was dead—she had been murdered in 1996 in Florida. Her husband could not be located.
In 2012, Diamond reached out to the Mid-Atlantic Innocence Project, which joined with the Institute for Innocence at the University of Richmond Law School to file a petition with the Virginia Supreme Court seeking a writ of actual innocence. The Attorney General for the Commonwealth of Virginia joined in the petition.
On March 11, 2013, the Virginia Supreme Court granted a writ of actual innocence. The DNA profile from the crime was submitted to the Virginia Department of Forensic Science DNA database, but no match was obtained. The DNA profile was expected to be submitted to the FBI DNA database at a future date.
Diamond was the 11th person to be exonerated by DNA testing of evidence found in Mary Burton’s files.
– Maurice Possley