DNA Held Suspect in Virginia: Starts a Larger Review
DNA evidence used in criminal convictions is currently under review by the State of Virginia. A recent sampling of results from past DNA evidence in cases has resulted in the conviction of two individuals who were innocent. This has prompted Governor Warner to order the review of many cases going as far back as 1973. The full news release from Governor Warner's office is below:
Governor Warner Announces Two Men Exonerated with Assistance of DNA Testing Not Available at Trial
— Results of Random Sample Review of Old Serology Files Prompt Full-Scale Review —
RICHMOND - Governor Mark R. Warner today announced that DNA testing has provided evidence to help exonerate two men, both of whom had served time for sexual assault, but had already been released from prison.
The cases have been investigated by the Commonwealth’s Attorneys in Norfolk and Alexandria. As a result of their investigations, the Commonwealth’s Attorneys have requested that the Governor issue absolute pardons. Both exonerated men have requested that their names not be released at this time. The Governor has asked that their petitions go through the normal review, but in an expedited manner.
The two exonerations came out of 31 cases that underwent DNA testing as a result of the random sample review ordered by Governor Warner in September 2004. The DNA testing in the Alexandria case eliminated the person convicted and further resulted in a “cold hit” to the Commonwealth’s DNA data bank. The Department of Forensic Science has recommended, and the Governor has concurred, that the remainder of the old serology case files be reviewed, and DNA testing done where appropriate.
“The powerful crime-fighting tool of DNA has helped add certainty to our justice system for many years now,” said Governor Warner. “I believe a look back at these retained case files is the only morally acceptable course, and what truth they can bring only bolsters confidence in our system. Our Department of Forensic Science has taken an impartial, scientific, and unrelenting approach to this review, and I commend their effort.”
Several former serologists saved biological evidence (swabs/cuttings) from their testing in their case files between 1973 and 1988, prior to the advent of DNA testing. The lab implemented a policy requiring the return of all such evidence to the submitting law enforcement agencies in 1989 in order to meet national accreditation standards. The Department of Forensic Science has stored 660 boxes containing an estimated 165,000 case files from that time period. The samples retained by the Department of Forensic Science constitute a finite universe of cases where the evidence remnants are retained by the state have a documented chain of custody.
On September 30, 2004, Governor Warner directed DFS to review 10% of the case files from 1973-1988 where forensic serological examinations, but no DNA analysis, had previously been conducted on evidence associated (primarily) with sexual assault cases (which were most likely to yield a conclusion based on new DNA evidence alone), in which the named suspect was eventually charged and convicted of the crime. The purpose of this review was to locate evidential swabs and cuttings previously retained in the files that met all the criteria for DNA testing as outlined by the Governor. The Governor also specified that the DNA analysis of the samples from the files would be conducted by a private laboratory (Bode Technology Group, Inc. in Springfield, Virginia) in order to ensure that DFS’s work on pending criminal cases was not slowed.
This review by DFS resulted in 284 samples in 31 cases that met the Governor’s criteria. Of those, the DNA testing in two cases led to exclusions of previously convicted people.
"Any math we do to try to calculate the possible impact of this new full-scale review is simply guesswork," said Paul Ferrara, Director of the Virginia Department of Forensic Science. "That being said, as many as 300 or more cases may meet the testing criteria. One could apply the same ratio of exonerations - two out of 31 - but again, that is unlikely to be statistically valid.”
As appropriate, cases selected for DNA testing will be developed in batches of 10 to15, sent to the private lab for expedited handling, and then reviewed by DFS staff immediately upon return. In this manner, DFS anticipates that the first results of the review project would become available for distribution in about four months after initiation, rather than have cases held up for months while others work their way through the process.
The process the Governor has ordered is in addition to the legal remedy the Code of Virginia has provided since May 2001 to allow convicted felons to petition a court for post-conviction DNA testing of retained biological evidence. Such requests from case files retained by Mary Jane Burton, a former serologist at DFS, led to the recent exonerations of defendants Marvin Anderson, Arthur Whitfield, and Julius Ruffin, with the assistance of DNA testing of original evidence that had only undergone conventional serological testing at the time of their trials. Those three exonerations led to Governor Warner’s September 2004 decision to initiate the review of 10% of the files retained at DFS.