LOUISVILLE, Ky. (WDRB) -- For the second time in a week, the Kentucky Innocence Project is asking a judge to throw out a 1987 murder charge against William Virgil, again claiming prosecutorial misconduct in a wrongful conviction that kept him in prison for 28 years.

Virgil's conviction was thrown out and he was released from prison in the last year thanks in large part to DNA testing that was not available when he was found guilty in the 1987 slaying of Retha Welch, a Veterans Administration nurse in Newport.

As he prepares for a retrial, Virgil's attorneys claimed late last month that prosecutors and police "fabricated" evidence in the case to "successfully frame Mr. Virgil for murder."

Now, in a motion filed Friday, the Innocence Project alleges prosecutors were responsible for destroying a knife in 2005 that had been used as evidence during Virgil’s trial "with full knowledge that forensic testing of the knife could lead to Mr. Virgil's complete exoneration."

Prosecutors asked a judge to order the knife destroyed without Virgil being present or being provided notice that such a request took place, according to the motion. The knife had been linked to another suspect in Welch's death.

Assistant Campbell County Attorney Adam Hill, who is prosecuting Virgil, has not returned repeated messages seeking comment.

Attorney Elliott Slosar and the Kentucky Innocence Project claim nearly 100 pieces of physical evidence from the trial have been retained, including two other knives.

"The potential murder weapon was the only piece of evidence that the Commonwealth sought a court order to destroy," according to the motion. "That they did so at a time that Mr. Virgil was still wrongfully incarcerated and was desperately trying to prove his innocence is almost beyond belief."

Late last month, Virgil's attorneys alleged that a jailhouse informant who told jurors Virgil confessed to him while the two shared a jail cell had recanted his testimony in a sworn affidavit.

Joe Womack now says Virgil never confessed to him and information allegedly given to investigators by the former inmate was "fabricated by the hands of the trial prosecutor and Newport police officers."

Slosar and the Kentucky Innocence Project are asking that the charges against Virgil be dismissed due to "prosecutorial misconduct." A hearing has been scheduled for later this month.

On April 11, 1987, Welch's body was found in a blood-filled bathtub of her Newport, Ky., apartment. She was reported to have been raped, stabbed repeatedly and bludgeoned with a vase. Her car and several items from her apartment were missing.

A judge threw out Virgil's conviction in December based on the findings from the Innocence Project, which include: DNA testing showed blood on Virgil's clothes did not belong to Welch and semen in her was not his; hairs found on Welch's clothing did not match Virgil; witnesses' stories no longer held up under scrutiny; and other suspects were ignored.

Prosecutors announced they would retry Virgil and have said there is other evidence still pointing to him being the killer. 

Virgil's attorneys have long claimed that police and prosecutors ignored another suspect, Isaac Grubbs, who had threatened Welch and was shot and killed by police the week Welch was found. A witness at the trial who owned a pay fishing lake said she overhead Grubbs threaten someone during a phone conversation at the lake on April 11, 1987.

The witness said she later looked up the number he had dialed and discovered it was Welch's.

A knife Grubbs used to attack two police officers before he was shot was never tested for blood or hair and was the one destroyed in 2005, according to the Innocence Project.

The defense attorneys claim the Feb. 5, 2005, order to destroy the knife is missing from Virgil's court file and the hearing is not on the criminal docket for that day.

Prosecutors told the judge that Virgil's case was complete and asked for the order to destroy evidence, even though Virgil was appealing his conviction, according to the motion. The knife, according to the motion, was the only way to link Grubbs to the murder.

"It is hard to envision a case where more unconscionable prosecutorial misconduct has occurred," Slosar wrote in the motion. "Knowing that forensic testing had advanced significantly by 2005, and in an effort to preserve Mr. Virgil's wrongful conviction" prosecutors had the knife destroyed.

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