Va. forensic officials limit access to new DNA evidence

February 16, 2012

by Frank Green

DNA testing in a 30-year-old slaying may not shed new light on the crime, but it raises new questions about who has access to the test results in a multimillion-dollar state project aimed at clearing the innocent.

"For the justice system in Virginia, it's just as important to know whether wrongful convictions have happened whether the defendant is dead or alive," said Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project.

The project tested evidence in hundreds of old cases prosecuted before DNA testing was available. For the most part, the results have been shared only with law enforcement and convicted people who have asked for the results.

In response to a Jan. 25 Freedom of Information Act request from the Richmond Times-Dispatch, the Department of Forensic Science refused to release details on 76 offenders — more than a dozen of them dead — whose DNA was not identified by testing.

Among the 76 is the late Phillip Clay Swiney, convicted of second-degree murder in 1983. Swiney's family only last week learned results of the January 2011 DNA test after The Times-Dispatch contacted the Virginia Department of Forensic Science and the Wise County Commonwealth's Attorney's Office.

Swiney died in 1998, long after his release from prison for his murder conviction in the 1982 slaying of Curtis Ray Robinette, who was beaten and his throat slashed.

Swiney's sister, Glenda Bolinskey, 61, of Appalachia, learned in 2008 that there would be DNA testing in her brother's case when authorities, not knowing Swiney was dead, sent a notification letter to Bolinskey's home, where Swiney lived before his death.

After an inquiry to the Wise County commonwealth's attorney's office from The Times-Dispatch last Friday, prosecutors called the Virginia Department of Forensic Science, obtained the test report and passed it on to Bolinskey.

As in any of the 76 cases where the convicted person's DNA was not found in the new tests, Bolinskey understood the results may not prove her brother was innocent.

Earlier last week, before learning the results from the prosecutor's office, she said, "If it comes down to us just finding out that he did it, we would still like to know. Whether he was guilty or not, I think we have the right to that information.

"It'll be a relief, one way or the other."

Timothy Swiney, of Lawrenceville, Ga., a brother, agrees, though he said it is difficult having the matter come up three decades later.

"It's like scratching an old wound, to be honest," he said. "It (had) a major, devastating impact for the entire family."

 * * * * *

The Department of Forensic Science said Tuesday that it contacted Wise County prosecutors earlier last week and suggested they contact Bolinskey after the department discovered a 2008 letter from her requesting the results in her brother's case.

The department said it did not hear back from the prosecutor's office until Friday.

In a Feb. 6 FOI request, The Times-Dispatch requested, among other things, any correspondence with the forensic science department from surviving family members requesting test results, called certificates of analysis.

Peter Marone, director of the department of forensic science, said it was unclear whether it was The Times-Dispatch's Feb. 6 FOI request that prompted his staff's discovery of the 2008 letter from Bolinskey.

Bolinskey said Jon Sheldon, a volunteer lawyer looking for 29 of the 76 convicted people whose DNA was excluded in the testing, recently contacted her family looking for Swiney.

In a Feb. 2 email to Sheldon, Gail D. Jaspen, chief deputy director of the department, wrote, "We have not, as part of the project's process, intentionally sent notification letters or certificates of analysis to family members of deceased suspects.

"If asked for a lab report in such a case, I am assuming we would assert the FOIA exemption for records relating to law enforcement investigations," Jaspen wrote to Sheldon.

"As someone who has put dozens of hours trying to find and notify convicts and their families of these potentially wrongful convictions, it was very disappointing to me to receive this kind of response," Sheldon said of Jaspen's email.

He said, "The stigma of a violent felony conviction can live on with parents, children and spouses, and the opportunity to rectify a clear wrong should be taken."

Sheldon, like Armbrust, also said mistakes that led to wrongful convictions need to be brought to light so the justice system can learn from mistakes made in wrongful conviction cases to prevent them from happening in the future.

But Marone said Tuesday that "there are a lot of ramifications to just blankly letting this stuff out there."

"Our intent has always been to work it through methodically and get it done, but … it just hasn't gone as fast as people would like it," Marone said. "We're not hiding stuff. We're trying to find it. We just have to do it in a logical way."

He added that the DNA files are "still criminal records." In some cases, "cold hits" indicate the real perpetrator, so it creates an ongoing criminal investigation. Even without a cold hit, the evidence can warrant further investigation by authorities, Marone said.

"It's not like we're trying to be very, very secretive about it," he said. "You've got to be very, very sensitive to people's privacy rights," including those of victims, he said.

Marone indicated that, contrary to the Feb. 2 email suggesting that his department would use the FOI statute to bar the release of test results to felons' family members, such people may be allowed to see them.

Marone said, "If they identify themselves and say, 'Here I am, I am a valid family member and I want to know,' we probably could do that."

In 2008, the Virginia General Assembly told the Virginia Forensic Science Board, which oversees the Department of Forensic Science, to notify the convicted people in the post-conviction project that there was testable evidence in their case.

Bolinskey received a letter from the board in December 2008 that was sent to Swiney notifying him that biological evidence had been found in his old forensic case file that appeared suitable for DNA testing.

"That same day, I sat down and I wrote them a letter saying where I had his power of attorney and the death certificate. I sent all that to them and asked if it would be released because my parents, you know, were getting old," Bolinskey said. "I contacted that office several times and never got an answer."

Marone said, "I don't know what happened there." He said that in 2008 when the notification was sent to Swiney, the department switched attorneys and paralegals.

* * * * *

At about 5 a.m. on Dec. 15, 1982, a motorist discovered the still-warm body of Curtis Ray Robinette, 36, lying in blood-stained snow beside a sharp curve on state Route 610 in the Powell Valley area of Wise County.

Swiney later told police he had picked up Robinette the night before and that the two drove around drinking and then began arguing and fighting.

On the way to Cracker's Neck, Swiney said Robinette was bleeding in the passenger seat after a fight outside a diner in Big Stone Gap. As Swiney was driving, he said, Robinette hit him in the head, so he kicked Robinette in the face, Swiney said.

Swiney told police he dumped Robinette on the side of the road so a passer-by could take him to the hospital.

Swiney's girlfriend testified that he told her he fought with Robinette after Robinette attacked him with a lug wrench. She also said Swiney told her that Robinette had made an insulting remark about her.

Indicted for first-degree murder, Swiney pleaded guilty in 1983 to second-degree murder, netting a 15-year sentence instead of a possible life term. He told his family that he was so intoxicated that night he could not remember what happened.

"Phillip never did say he done it. He said, 'I honestly don't know,'?" Bolinskey said.

"He ended up serving eight years and when he got out, he just never was the same," she said.

* * * * *

 After responding to the department in 2008, Bolinskey had largely forgotten about it until last month when one of her brothers, Timothy, in Georgia, got a letter from Sheldon, looking for their brother, Phillip.

Local law enforcement agencies and prosecutor offices that handled the old cases are sent the test results by the forensic science department.

Last Friday, Ronald Elkins, the Wise County commonwealth's attorney since 2000, said: "We never had — that I'm aware — anything like that from the Department of Forensic Science."

Suzanne Kerney-Quillen, Wise's deputy commonwealth's attorney, said she contacted the department later Friday and obtained a copy of the DNA certificate of analysis.

"They said they sent it to us" last year, she said, but it was only addressed to the sheriff. "It went to our sheriff's department (to) an investigator who is no longer employed there," she said.

Kerney-Quillen said the department told her that just last Thursday that officials found a 2008 letter from Bolinskey requesting any DNA test results in her brother's case.

The evidence tested was a stain from the passenger and driver sides of the car seat. "That's where (the) victim's blood was found," Kerney-Quillen said. "It sounds to me like it's probably the victim's blood," and that is why Swiney's DNA was not found.

The lab was unable to obtain usable DNA results from a sample of the victim's blood, so it cannot be certain the DNA is from the victim and not a third person.

Marone said that although the Swiney test report would have had the sheriff's office's address on it, it would have been sent to the commonwealth's attorney.

He added that in exclusion cases such as Swiney's, the prosecutors are also called to bring the results to their attention. He said that to the best of his knowledge, such a call was made to Wise County back in 2011.

Bolinskey said, "I was a little bit disappointed because it didn't come out and say that he was innocent." But, she added, "I'm going with the thought that if he had actually done this murder, there would have been some of his DNA found."

Armbrust, with the Mid-Atlantic Innocence Project, said her organization would be glad to look into Swiney's case.

"I think any case where you have an exclusion warrants investigation even if, at the end of the day, that investigation proves nothing," she said.

fgreen@timesdispatch.com (804) 649-6340

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