Virginia Felons Notified of Possible Exculpatory DNA Evidence – Eventually

by Gary Hunter

On January 9, 2008, Virginia’s state Forensic Science Board (FSB) voted 6 to 5 against notifying convicted defendants that DNA evidence had been discovered in their criminal cases. Instead, the FSB decided, it would be up to state authorities to determine whether DNA testing was warranted.

From 1973 to 1988, forensic serologist Mary Jane Burton diligently saved swabs and swatches of semen and blood samples in the cases she investigated. At that time DNA research was a little known science. Burton’s foresight in preserving evidence led to the exoneration of Marvin Anderson two decades later.

Anderson, wrongfully convicted of rape in 1982 and paroled in 1997, never stopped searching for a way to prove his innocence. He had previously inquired about DNA but the state told him none existed in his case. However, in 2001 his attorney, Peter Neufeld with the Innocence Project, discovered DNA evidence did in fact exist; it had been carefully preserved by Burton. That evidence led to Anderson’s exoneration. He received a full pardon from then-Governor Mark Warner in August 2002.

Not only did DNA evidence exist in Anderson’s case, the Virginia Department of Forensic Science discovered DNA had been preserved in 2,166 other cases involving 941 convicted defendants. In 2005, Gov. Warner ordered that the evidence be tested; a sample examination of 31 cases resulted in two more men being cleared of rape charges.

That’s the good news. The bad news is that testing in the remaining cases has been delayed; further, the FSB initially decided, at its Jan. 9, 2008 meeting, to let state authorities determine whether or not to inform current or former prisoners that DNA evidence had been found in their cases.

Mary Kelly Tate, director of the Institute for Actual Innocence at the University of Richmond School of Law, was appalled. “It’s really astounding to me and it’s sad.... It’s bad policy and there really is no justification for this kind of inaction,” she said.
Criminal defense attorney Steven D. Benjamin agreed. Benjamin, who is a member of the FSB, stated, “It’s unconscionable ... not to notify folks there is biological evidence that has been discovered” related to their criminal convictions.

Shawn Armbrust is executive director of the Mid-Atlantic Innocence Project in Washington, D.C. She noted that convicted felons have a legal right to request DNA testing. Peter Marone, director of Virginia’s Department of Forensic Science, said attorneys who contact them on a defendant’s behalf are being told. But others strongly disagree with the notion of notifying everyone affected by the newly-discovered DNA evidence.

FSB member S. Randolph Senegel feared for the integrity of law enforcement officials. Sending notices to convicted felons, he said, “[I]mplies law enforcement is ... not properly responding [and] sends the wrong message.” This of course may be the entire point – which is compounded by non-disclosure by state officials.

Virginia State Police Col. W. Steven Flaherty said he worried about the cost of locating and notifying everyone whose case had preserved evidence. The message was clear: The value of state dollars and the reputation of its police trump the constitutional rights of its citizens. “I know that the people on the board are fair and decent,” remarked Tate. “But this decision does not reflect fairness.”

State lawmakers agreed, but only after the media widely reported the FSB’s decision not to notify potentially wrongfully convicted citizens of DNA evidence. Last March, Virginia’s General Assembly ordered the FSB to “ensure that all individuals who were convicted due to criminal investigations, for which its case files for the years between 1973 and 1988 were found to contain evidence possibly suitable for DNA testing, are informed that such evidence exists and is available for testing.”

Despite this clear legislative mandate, for months the forensics lab refused to release a list of names in cases with newly-found DNA evidence, frustrating notification efforts. Although over 200 Virginia attorneys volunteered to provide pro bono assistance in locating and notifying affected convicted defendants, their offer was declined. The FSB said it was concerned about safety and privacy issues.

On August 5, 2008, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) issued a statement calling for the notification “without delay” of all current and former prisoners who had been convicted between 1973 and 1988, where DNA evidence in their cases had been found.

At a meeting held the following day, the FSB voted to send notification letters to about 400 convicted defendants whose cases included preserved DNA evidence. Even that initial limited step, however, met with dissention. Some of the FSB members argued the contact addresses might be outdated, or that the recipients may not understand the letters or trust notices from government officials.

“We may as well just throw all these letters up into the wind,” said Benjamin, who preferred direct notification by attorneys. “I don’t think there’s any doubt in anyone’s mind that we have a moral and statutory duty to notify people that evidence exists that could prove their innocence,” he said. “By choosing to use the mail we are selecting the least reliable method of notification.”

FSB chairman Joseph P. Bono described the letters as a first step, stating, “I think it will work in many, many of the cases. In those cases where it doesn’t work, then we can explore another option.” Additional convicted defendants will be notified after DNA evidence in old case files has been examined; the testing is being done by a private lab in Northern Virginia.

“Science has advanced, and now there is other information available, so let’s let them know about it,” said State Delegate David B. Albo, who observed the notifications were worth the effort “if there is even one person who is innocent.”

Which makes one wonder why the state initially denied that DNA evidence existed, delayed notifying the people who were affected, declined free assistance from hundreds of volunteer attorneys, and acted only after facing public pressure. Thus far, tests of the preserved DNA evidence have uncovered eight more cases where the results did not match the crime evidence, with hundreds of cases yet to be examined.

Sources: Roanoke Times, NACDL press release, Washington Post , Associated Press, www.news8.net

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