Felons not being told of new evidence

Biological material turns up in 2,215 Va. cases prior to widespread DNA tests

Friday, Jan 11, 2008

By FRANK GREEN, RICHMOND TIMES-DISPATCH

Virginia felons convicted of crimes before DNA testing was widely in use are not being notified when biological evidence is found in their old forensic case files.

As a result, it is largely being left up to authorities to determine whether DNA testing is warranted in such cases and to interpret whether the results have any bearing on innocence.

In a groundbreaking project far larger than first envisioned, the Virginia Department of Forensic Science has searched 530,079 paper files dating from 1973 to 1988, finding 2,215 that contain crime-scene biological material and include a suspect's name.

Five men wrongly convicted of rape have been cleared with evidence from the old files. Advocates and others are concerned that for the most part, only authorities are being told the evidence exists and not the felons who potentially have the most at stake.

In a 6-5 vote, the state Forensic Science Board has decided not to apprise the governor and General Assembly that convicted people are not being told about the evidence -- a move that might result in the state locating and notifying them.

"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," Mary Kelly Tate, director of the Institute for Actual Innocence at the University of Richmond School of Law, said yesterday.

Tate added: "I know that the people on the board are fair and decent, but this decision does not reflect fairness."

Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project in Washington, agreed. Among other things, she said, felons have a right under state law to seek DNA testing in appropriate cases.

. . . Forensic Science Board member Steven D. Benjamin, a criminal defense lawyer, argued at Wednesday's meeting that the felons should be notified, or at least the governor and lawmakers be alerted that they are not being notified.

"It's unconscionable . . . not to notify folks there is biological evidence that has been discovered," Benjamin said.

Board member S. Randolph Sengel, the Alexandria commonwealth's attorney, strongly disagreed with Benjamin's proposal.

"It implies the way it is working now is defective, and it implies law enforcement is . . . not properly responding. It seems to me to raise this red flag at this juncture sends the wrong message," Sengel said.

Sengel added that prosecutors in Virginia take the study very seriously and will do the right thing if evidence of innocence is turned up.

Board member Dr. Leah Bush, the state's new chief medical examiner, agreed with Benjamin that notifications should be made when possible out of fairness.

But Col. W. Steven Flaherty, head of the Virginia State Police, said that while the goal was laudable, he feared, among other things, unforeseen burdens that might be placed on any state agency given the job of tracking the people down and notifying them.

Peter Marone, director of the Department of Forensic Science, told the board that lawyers who are asking whether evidence had been found in the files of clients are being told.

. . . It was first learned in 2001 that former state forensic serologist Mary Jane Burton saved biological evidence -- primarily blood or semen on swatches or swabs -- in her case files after Marvin Anderson, of Ashland, sought DNA testing to clear his name.

Anderson was convicted wrongly of a 1982 rape and spent 15 years in prison until his parole in 1997. Anderson first was told no evidence remained for DNA testing.

However, the state forensics lab discovered biological material in Burton's case file on Anderson -- and in many of her other old files. Subsequent DNA testing cleared Anderson and implicated the real rapist, who later was convicted.

Benjamin argued to the board Wednesday that there could be others who, like Anderson, were told initially that evidence no long existed for DNA testing but who accepted the state's word and did not keep asking.

After Anderson, two other men were exonerated of old rape charges based on evidence saved by Burton.

. . . In 2005, then-Gov. Mark R. Warner ordered DNA testing in a sample of 31 of her old cases, and two more men wrongly convicted of rape -- neither of whom had sought DNA testing -- were cleared.

Warner then ordered testing in all appropriate cases from 1973 to 1988. Marone said the original directive from Warner dealt with sex offenses only and quickly was expanded to include murder.

His department is contacting prosecutors, clerks and the state police to determine whether individuals were convicted of such crimes in each of the 2,215 cases. Once a case meets all the criteria, the material is sent to an independent laboratory for testing.

The test results are forwarded to the prosecutor's office that originally handled the case to see if it has a bearing on innocence. All DNA test results are forwarded to the governor.