In the summer of 1989 Jeffrey Scott Hornoff was a married 27-year-old Warwick, Rhode Island police officer with an infant child. As a member of the Warwick Police Scuba and Underwater Assault Team, Hornoff met 29-year-old Victoria Cushman, an employee of Warwick’s Alpine Ski and Dive Shop. That friendship resulted in two sexual encounters between Hornoff and Cushman during a two week period that summer. Although it was not a serious relationship, she perhaps wished it was when she told several people at the sporting goods store where she worked that she thought he was going to leave his wife for her. On August 11, 1989, two days after telling co-workers that Hornoff wanted to resume only being friends with her, Victoria Cushman didn’t show up for work. Several of them went to her apartment and found her lying in a pool of blood. She had been bludgeoned to death with a 17-pound fire extinguisher that was found near her.

Initial suspicion that Hornoff might be her killer was fueled when an unmailed sealed letter to him was found in her apartment. In that letter she wrote “she understood they could have no future, but they could continue to “have a present”; she wanted to continue the affair.” 1 A co-worker of Cushman’s corroborated the essence of the letter by telling police she had expressed surprise and disappointment that Hornoff only wanted a platonic friendship with her. 2 Hornoff was young, he had been building a good career and he was handsome, so it is easy to see why Cushman would be interested in him.

Hornoff aided the appearance of his possible guilt when he was questioned by police interrogators who knew the contents of the letter. Although he readily acknowledged he knew Victoria Cushman, to shield his two intimacies with her from his wife, he denied they had been anything other than friends. However, within an hour he acknowledge the two encounters he had with Cushman. 3

Yet, any circumstantial appearance of Hornoff’s guilt was counteracted by his seemingly rock solid alibi of being at a party with his wife and friends on the night of Victoria Cushman’s murder. Although inadmissible as evidence in court, his continuous presence at that party was supported by the results of a polygraph test he requested. The results of that test, administered by a Warwick P.D. detective, were reviewed by three other experts who all concurred that Hornoff was being truthful about his whereabouts at the time the murder occurred. The offer of Hornoff’s wife and brother to take polygraph tests to corroborate the one taken by Hornoff was ignored by authorities. 4 A grand jury that considered the evidence against Hornoff was dismissed without indicting him. 5

Since there was no physical evidence of any kind or any witnesses linking him to the murder, and the Rhode Island State Patrol took over the murder investigation because of inter-office bickering over handling of the case between the Warwick P.D.’s Major Crime Unit and their police supervisors, Jeffrey Scott Hornoff wasn’t charged with Victoria Cushman’s murder until a second grand jury indicted him more than five years after her death. 6 However, he had been painted with a black brush for so long, that as Warwick City Councilman Carlo Pisturo said recently, “By then it was almost common knowledge that Scott had killed the girl. All indications were that he was guilty and that the cops had covered for him.” 7

Hornoff’s ace in the hole at his trial was his alibi of being at a party with many other people when Victoria Cushman was murdered. The prosecution, however, casually brushed that aside. It claimed he slipped away, murdered her, and returned to the party without anyone noticing either his absence, or anything about the condition of his clothing that one would expect to be visible if he had just committed a brutal and messy murder with a fire extinguisher. The prosecutors made that claim even though they knew what they jury wasn’t told: Hornoff’s statement he was at the party at the time Cushman was murdered was unanimously supported by the four experts that evaluated the police administered polygraph test. The unmailed letter was presented as circumstantial evidence of his motive although there was no evidence he knew of the letter prior to being told by police it existed, and his initial claim of having only been friends with her was presented as circumstantial evidence he tried to cover up murdering her.

After the jury bought the prosecutor’s argument and convicted Jeffrey Scott Hornoff of murder without any proof he was guilty, he professed his innocence at his sentencing. He told the packed courtroom, “Am I guilty of something? Yes I am. I broke my sacred wedding vows, and for that I will never forgive myself.” 8

Sentenced to life in prison, the Rhode Island Supreme Court unanimously dismissed Hornoff’s arguments when it upheld his conviction in 1999. However the affirmation of his conviction and sentence was somewhat hollow, because his appellate lawyer had failed to cover substantial points of law and possible reversible errors brought to her attention by Hornoff’s trial lawyer. 9 At that point all indications were that he would be spending the rest of his life in prison branded as a heinous and vicious murderer.

However, fate intervened on his behalf when on Friday, November 1, 2002, 45 year old carpenter Todd Barry

walked into the office of the Rhode Island Attorney General and confessed to murdering Victoria Cushman. Barry indicated he was consumed with guilt over an innocent man spending his life in prison for something Barry had done. After the A.G.’s office spent the weekend comparing Barry’s confession with the known evidence and facts of the case, he was charged on Monday, November 4th with her murder. The degree to which Victoria Cushman’s murder was inadequately investigated is indicated by the facts that although Barry lived near her, he had dated her off and on for more than a year, and his name and telephone number was near the front of her Rolodex seized by police from her home, he was never considered a suspect and was never questioned about her murder. 10 Almost fourteen years after the fact, and only after Barry had confessed, a prosecutor publicly acknowledged, “The two had met in the summer of 1988 and developed … “an on-again, off-again relationship” that was "primarily sexual.”” 11 Yet in spite of the trail a mile wide leading straight to him, Todd Barry was home free once law enforcement officials mistakenly locked onto Hornoff as her killer. At that point they became tunnel blind to clues leading to anyone else and all meaningful investigation into her murder ended. Although they had a friendship with Victoria Cushman in common, there is no evidence that Barry or Hornoff had ever met or knew of each other.

Jeffrey Scott Hornoff walked out of the Providence County Courthouse a free man on November 6th, five days after Todd Barry confessed to Victory Cushman’s murder. His release on bail pending further proceedings was ordered by the same judge that had presided over his trial and assuming his guilt, had sentenced him to spend the rest of his life in prison for a crime he didn't commit. 12 Hornoff’s claim of innocence had fallen on the deaf ears and to the blind eyes of everyone, including the judge, who chose to substitute the appearance of his guilt for any proof that he actually was.

Although Barry’s confession is what led to Hornoff’s release, concerned people had been publicizing his nearly self-evident innocence for some time. The group truthinjustice.org, for example, explained on its website that the case against him was based on “innuendoes and speculation. There were no fingerprints, no blood evidence, no DNA matches, no witnesses, and no evidence.” 13

Given Hornoff’s conviction in spite of an absence of evidence he was guilty, the comment of the Rhode Island State Police’s commander of the detective division to a Providence Journal reporter about his case is indicative of why it is reliably estimated that at least 15% of everyone imprisoned in this country is innocent: “I can assure you from a state police standpoint, we did nothing different in this homicide investigation than we would in any other.” 14

Rhode Island Attorney General Sheldon Whitehouse tried to deflect attention away from the failure of the police to adequately investigate Victoria Cushman’s murder and the failure of the prosecutors to demand evidence Jeffrey Scott Hornoff was guilty before prosecuting him. Whitehouse used the same sort of hollow sophistry and disregard for the truth that led to Hornoff’s false conviction when he denied investigators and prosecutors “did anything improper or wrong.” Although Hornoff was the victim of a horrible wrong by law enforcement officials and judges that obliterated his life, Whitehouse blamed him for his wrongful prosecution, conviction and imprisonment by saying he shouldn’t have made the sort of “misstatements” to police typical of someone “who is trying to hide something.” 15 Yet it was soon made plain to police after they first questioned Hornoff in 1989 that he was trying to hide something: his two intimate encounters with Victoria Cushman from his wife. For initially lying to police about that indiscretion he paid the heavy price of being tormented and punished for over thirteen years: the seven years he spent as a suspect and accused from her 1989 murder to his 1996 conviction, and the six and a half years he spent in Rhode Island's maximum-security prison falsely branded as her killer.

The horrific travesty perpetrated on Jeffrey Scott Hornoff by the police, the prosecutors, and the trial and appellate court judges involved in his case is not lessened by the sophomoric effort of Rhode Island officials to cover up for their blundering incompetence and callousness. All he can now do is rebuild his life from the ashes of the atomic bomb dropped on it from his purely coincidental choice of having two sexual encounters with Victoria Cushman close to the time she was murdered by Todd Barry. In a particularly cruel twist of fate, the wife he had tried to protect from knowing about his intimacies with Victoria Cushman by lying to the police, divorced him while he was in prison. It was that lie told to try to preserve his marriage that prosecutors used to destroy his credibility and falsely paint him as a heinous murderer. So telling that lie intended to protect what A.G. Whitehouse called the “small secret” of his indiscretion is what he spent over six years in prison for, not her murder.

When released from custody on November 6th Jeffrey Scott Hornoff literally had nothing but the clothes on his back. His home, his wife, his career, his possessions - it was all gone. Five weeks later, on December 11, 2002, about 150 people turned out for a fundraising dinner in

Warwick, Rhode Island to help him get back on his feet financially. Over $5,300 was raised and his three sons, 13, 11 and 6, who now have their father back, attended. 16

On January 7, 2003, Todd Barry’s plea to second-degree murder that was arranged between his lawyers and the prosecutors was accepted by Superior Court Judge Nettie Vogel. The judge then imposed the agreed to sentence of 30 years in prison with 15 years suspended, which means Barry will be eligible for parole in 10 years. 17 It is an embarrassment to the Rhode Island judiciary and law enforcement officials, and an affront to Victoria Cushman’s family, that the sentence given to her murderer was significantly less than the one given to an innocent Jeffrey Scott Hornoff after his wrongful conviction. That disparity is magnified by Barry’s claim that his responsibility for her murder is mitigated by its occurrence during an argument. 18 That assertion is farcical on its face: She was found dead with a plastic night guard in her mouth, which a person only inserts when going to sleep to prevent teeth grinding. 19 In other words, Barry beat her to death with a 17 pound fire extinguisher while she slept or immediately after she had awoken. Yet the judge and prosecutors let him off the hook by allowing him to plead guilty to a charge from which he will be released from prison in his early to mid-50s. He will still young enough to enjoy life, unlike Victoria Cushman whose life he viciously snuffed out.
Later that same day, Jeffrey Scott Hornoff was officially exonerated of Victoria Cushman’s murder. In his own way, Judge Robert D. Krause, the same judge that had presided over Hornoff’s false conviction and sentenced him to life in prison for a crime he didn’t commit, embarrassed himself during that proceeding as much as Judge Vogel did during Todd Barry’s sentencing. Although Judge Krause knew all the facts of the case and was one of the principle people responsible for the terrible injustice that had been perpetrated on Jeffrey Scott Hornoff, he only dismissed Hornoff’s charges after the prosecutor told him during the hearing that it was in the interests of justice for him to do so. 20 The judge was also disrespectful of Hornoff and the ordeal he had been a party to putting him through, by failing to look at him during the hearing.

Appearing on the Today Show, Jeffrey Scott Hornoff said of his experience: “There were a lot of moments of bitterness while I was in prison. But I'm doing my best to leave the anger and the resentment at the door and not let it consume me. There's a lot of emotions going on. On one hand, I was happy for me and for my family, you know, finally having this weight off our shoulders and this shadow taken away. I felt a great deal of sadness for ... Vicki's family.” 21

Endnotes

1 Barry pleads guilty; Hornoff finally free: The man who confessed to the 1989 murder of Victoria Cushman pleads guilty as the police detective wrongly imprisoned for the crime looks on, Gerald M. Carbone and Tom Mooney (staff writers), Providence Journal, January 7, 2003, at: http://www.projo.com/news/content/projo_20030107_barry7.20b85.html.
2 Convicted Killer Freed As Another Man Confesses, Brian Carovillano (AP), Seattle Post-Intelligencer, November 23, 2002, at: http://seattlepi.nwsource.com/national/97001_convict23.shtml. The coworker testified to this at Hornoff’s trial.
3 Letter to Hans Sherrer from Jeffrey Scott Hornoff on January 16, 2003.
4 All information related to the polygraph tests was provided to Hans Sherrer by Jeffrey Scott Hornoff on March 3, 2003.
5 Letter to Hans Sherrer, supra.
6 Id.
7 Convicted Killer Freed As Another Man Confesses, supra.
8 Id.
9 Letter to Hans Sherrer, supra.
10 See e.g., Barry pleads guilty; Hornoff finally free, supra. See also, Letter to Hans Sherrer, supra.
11 Id.
12 Two days earlier, on November 4th, Hornoff was brought into court on a writ of habeas corpus, but the judge refused to release him because he was not satisfied with the wording of the bail motion.
13 www.truthinjustice.org

14 Quote by R.I. S.P. Captain Michael P. Iarossi was in Jeffrey Scott Hornoff Statement to the Press on January 8, 2003. Contained in a Letter to Hans Sherrer, supra. The statement is available at: http://www.truthinjustice.org/hornoff2.htm.
15 Man To Be Freed On Murder Rap, Douglas Hadden, Pawtucket Times, November 5, 2002.
16 Friends Hold Fundraiser for Hornoff, Cathleen F. Crowley, The Providence Journal, December 13, 2002.
17 Barry pleads guilty; Hornoff finally free, supra.
18 Barry pleads guilty; Hornoff finally free, supra.

19 Barry pleads guilty; Hornoff finally free, supra. Anyone who has worn a night guard device knows the first thing you would do after awakening is to take it out, because it is not only uncomfortable to try and talk with it in your mouth, but all you can do is mumble until it is removed. Barry’s recitation of an elaborate conversation with Victoria Cushman on the night he killed her, during which he claimed she even climbed through a window onto her roof is so far fetched that it is amazing the audience, the judge and the prosecutor didn’t break out laughing. Yet the farcical tale was allowed it into the record as the “truth,” and it was the basis for Barry to avoid a first degree murder charge and to be given a life sentence without parole. In other words, the judge and prosecutor demeaned themselves by allowing Todd Barry to transform his premeditated murder of Victoria Cushman into an unplanned killing that was an inappropriate expression of his emotions.

20 Barry pleads guilty; Hornoff finally free, supra. Judge Krause asked the prosecutor, “Are you firmly convinced beyond all doubt that the position you take here today is in the interest of justice?” to which the prosecutor replied “Yes, your honor.” The judge went through this formality in spite of knowing the misjustice inflicted on Mr. Hornoff.
21 Barry pleads guilty; Hornoff finally free, supra.