Not Guilty, Sentenced to Life: How two Virginia men were tried twice for officer’s murder, acquitted, then still sentenced to life

This is part two of a series looking back on the Waverly Two's case. To read part one, click here.

RICHMOND, Va. (WRIC) -- Terrence Richardson and Ferrone Claiborne were tried twice for the 1998 murder of a Waverly police officer. Despite the fact that their federal jury found them not guilty, they were still sentenced to life in prison. But how is any of that possible? 8News is breaking down the legal loopholes that led to these two men being put away for decades.

In April 1998, 25-year-old Allen Gibson with the Waverly Police Department was shot and killed in the woods behind a local apartment building. Soon after, then-27-year-old Richardson and 22-year-old Claiborne were both arrested and charged with his murder.

ALL COVERAGE: Not Guilty, Sentenced to Life

The so-called "Waverly Two" took a plea deal in state court in 1999, fearing the death penalty if they went to trial. Richardson pleaded guilty to involuntary manslaughter and Claiborne walked free with a misdemeanor -- with the latter telling reporters outside of the courthouse that he felt like he'd "been blessed."

However, Gibson's family members were not happy about this outcome.

The family of Allen Gibson, a Waverly police officer who was killed in 1998, after a Sussex County court upheld the terms of a plea deal offered to the two men accused of his murder. (Photo: 8News)

"No, it's not justice," Susie Gibson, Allen's mother, told reporters at the time. "Those two guys killed my son."

Soon after and as a result of pressure from the Gibson family, the FBI got involved in Richardson and Claiborne's case. New federal charges were then weighed against them in 2000.

Typically, "double jeopardy" -- or prosecuting someone for the same crime more than once -- is prohibited in America's courts. However, because the Waverly Two's initial case was on a state level and this second effort was federal, double jeopardy did not apply.

Richardson and Claiborne faced new charges during these federal proceedings: conspiracy to distribute “crack” cocaine, the use of a firearm to commit murder during drug trafficking and the murder of a law enforcement officer during drug trafficking.

Federal prosecutors framed Gibson's murder in a new way, claiming it was the result of a "drug deal gone bad" and that the Waverly Two were "kingpins" that led a Waverly-area drug ring called the "Waverly Crew." Per the federal indictment, federal prosecutors argued that Gibson was killed because he had interrupted a drug deal involving Richardson and Claiborne.

Local authorities did not agree with this portrayal.

“Kingpins? Come on. No," Warren Sturrup, the chief of the Waverly Police Department at the time of the murder, previously told 8News. “I never saw ‘em [Richardson and Claiborne]. I never knew ‘em. We knew who were the players [in the drug ring] … those two? They were not players.” 

The federal indictment for Terrence Richardson and Ferrone Claiborne, highlighting the allegations that they were involved in Waverly-area drug trafficking. (Photo: 8News)

Additionally, drugs were not found during any searches conducted on Richardson or Claiborne -- who, in previous interviews with 8News, denied they'd ever dealt cocaine.

“Never, never," Claiborne said during that interview. "I sold marijuana before, but I never sold crack."

8News was able to speak with one of the federal jurors, Dawn White, who gave her account of the federal court proceedings. She described how most of the key witnesses called against Richardson and Claiborne were prisoners, "testifying in orange jumpsuits."

“They had records and they had something to gain by coming in to testify,” Michael HuYoung, the attorney who represented Richardson during the federal trial, previously told 8News.

Court documents obtained by 8News describe the testimonies of such witnesses, such as Keith Jackson and William Ellsworth.

Jackson, who was incarcerated on drug charges at the time of the trial, claimed to know that Richardson and Claiborne were involved with drugs in Waverly. He claimed that he witnessed an argument between Richardson and another man shortly after Gibson was killed, during which Richardson reportedly said "whatever, you don't want to f-ck with me. I done killed one. I'll kill another."

Ellsworth, a previously convicted violent felon, claimed he overheard Richardson admit to him that he killed Gibson while they were both in a convenience store. He claimed that Richardson said that "if he could take it [the murder] back, he would."

Ellsworth potentially had a firearm charge dropped as a result of his cooperation.

Ellsworth's testimony was also contradicted by those of Malcolm Westbrook, Richardson's uncle, and Annie Westbrook, Richardson's mother. The alleged convenience store incident was said to have taken place after a funeral service for Richardson's grandmother.

Malcolm Westbrook, who left the funeral with Richardson, denied that they ever stopped at a convenience store. Annie Westbrook agreed, saying there wouldn't have been enough time for them to stop. She also added that she did not see Ellsworth that day at all.

The federal jury was also presented with additional evidence that was not included in the plea colloquy -- or the summary of arguments that would have been heard if not for an agreed-upon plea deal -- that was shared at the state level.

This included testimony from witnesses who claimed that they had knowledge of Richardson and Claiborne's involvement. One such witness was Evette Newby, a resident of the apartment building, who testified that she saw Richardson and Claiborne struggle with Gibson over his firearm.

However, court documents indicate potential conflicts of interest. Newby said that an investigator had tried pressuring her to say she actually saw Richardson shoot Gibson. Additionally, she was given food money for her and her children by both the Sussex County Sheriff's Office and a federal special agent.

These testimonies were in stark contrast to the distinct lack of physical evidence tying Richardson or Claiborne to Gibson's murder -- no blood, no hair and no DNA. In fact, hair fragments found on Gibson's uniform were found to be neither his nor the Waverly Two's, indicating someone else had left them there.

In the end, the federal jury found Richardson and Claiborne not guilty on the two murder charges -- despite their hearing the "strongest case" of the Waverly Two's guilt that federal prosecutors could muster, according to former Virginia Attorney General Mark Herring.

White recalled how sure the jury felt that they had not killed Gibson.

Dawn White, one of the jurors who served during the federal trial of Terrence Richardson and Ferrone Claiborne. (Photo: 8News)

“As I recall, no one ever really thought they were guilty of murder,” White previously told 8News.

However, the jury did find the Waverly Two guilty on the drug conspiracy charge.

“I would have assumed that they get [a sentence of] … at the most, 10 years,” White said.

After delivering their verdicts, the jury was dismissed, leaving the Waverly Two's sentencing in the hands of federal judge Robert E. Payne.

Even though such a drug charge would not normally result in life in prison, Payne handed life sentences to Richardson and Claiborne.

According to court documents, Payne believed that "by clear and convincing evidence and perforce by a preponderance of the evidence ... both defendants participated in the killing of Officer Gibson.”

“But our [the jury's] verdict was not guilty of the murder,” White said, adding that this decision -- which she'd only just learned of at the time of 8News' interview with her -- left her "dumbfounded."

So how could Payne deliver such a sentence? Authority established through legal precedent and federal sentencing guidelines allows for judges to "cross-reference" acquitted conduct. In this instance, Payne was able to refer to the acquitted murder charge when sentencing the Waverly Two on their drug charge, thus enhancing the allowable maximum sentence.

A statement from the U.S. Department of Justice regarding Robert E. Payne's 2001 sentencing of Terrence Richardson and Ferrone Claiborne. (Photo: 8News)

“It’s a miscarriage of justice to enhance on something they have actually been acquitted of," then-8News legal analyst Bill Shields said previously. "I have not seen that before."

Richardson and Claiborne's families felt similarly, expressing their frustration in previous interviews with 8News.

“I just feel like he was railroaded and they did whatever they could to get a conviction,” Felisha Claiborne, Ferrone Claiborne's sister, said during one such interview.

In an early phone interview, Richardson echoed this idea, himself.

"They actually knew we didn’t do it -- but they just needed somebody to be the scapegoat for it," he said.

In the decades since, Richardson, Claiborne and their loved ones -- as well as attorney Jarrett Adams, who joined their fight for clemency through the Innocence Project in 2019 -- have repeatedly challenged their convictions.

Through those efforts, evidence that was reportedly withheld from the Waverly Two's defense has been uncovered. It's such evidence that has them determined to receive complete clemency even in the wake of then-president Joe Biden commuting their sentences in January -- as, while they may be able to walk free, they are still legally considered to be Gibson's murderers.

On Wednesday, March 5, Richardson walked out of FCI Petersburg Medium for the first time in over 20 years. Claiborne's release date has yet to be announced, but he should be out sometime this year.

Stick with 8News as we continue to follow this story, as we have since 2017.