Judge Orders DNA Testing For Inmate On Death Row
Va. Attorney General Tries to Block Ruling

By Brooke A. Masters
Washington Post Staff Writer
Friday, January 12, 2001

A federal judge for the first time has ordered new DNA testing for Virginia death row inmate, ruling that Brian Lee Cherrix needs the lab worto verify his claim that he was wrongfully convicted of killing a pizza delivery woman.

However, Virginia Attorney General Mark L. Earley yesterday asked a federal appeals court to block the ruling, arguing that U.S. District Judge Gerald Bruce Lee in Alexandria overstepped his constitutional authority when he ordered the state to turn over the evidence.

The case comes at a time when post-conviction DNA testing has exonerated nine American death row inmates, including Earl Washington Jr., who was pardoned by Virginia Gov. James S. Gilmore III in October. Unlike some states, Virginia does not give prisoners the legal right to ask for DNA testing, but both the Virginia Supreme Court and the state legislature are considering making it easier for inmates to get testing and new trials.  In the meantime, some inmates, including Cherrix, have turned to the federal courts.

Cherrix, 27, was sentenced to death in the 1994 killing of Tessa Van Hart, 23, who was lured to a remote home on Chincoteague Island, sodomized and then shot twice in the head. DNA testing on sperm found in the victim's body
was inconclusive, and the case went unsolved for two years until Cherrix was arrested on another charge and offered to give authorities information about the killing in exchange for leniency.

Those statements, in which police say he confessed, then became the linchpin of the prosecution's case. Cherrix has denied confessing and says he has an alibi. The Virginia Supreme Court has twice upheld Cherrix's conviction.

Cherrix's attorneys now argue that scientific advances have made new, more precise DNA testing possible, and on Tuesday, Lee agreed that the laboratory work should be done and that the court would pay for it.

"It is possible for current DNA testing methodologies to show that [Cherrix] is actually innocent, which may, in turn, render his execution unconstitutional," Lee wrote in a nine-page decision. He ordered Earley's office to preserve the biological evidence from Cherrix's Accomack County trial.

Earley's office responded by asking the 4th U.S. Circuit Court of Appeals to overturn Lee's decision, arguing that the federal courts do not have the authority to order DNA testing during an appeal of a state death penalty case.

"This matter is not an issue about Cherrix's alleged innocence; it is about what we believe to be a clear abuse of federal judicial power," said Earley's spokesman, David Botkins. "We believe that a federal court cannot compel a state official to act as a private investigator, courier and laboratory for a convicted capital murderer."

Botkins noted that the legislature is considering the testing issue right now and that Cherrix could also ask Gilmore to order a DNA test. The governor has ordered DNA testing in Washington's case and in the case of Derek R. Barnabei, who was executed this summer after the testing inculpated rather than exonerated him.

Cherrix's lead attorney, Michele Brace, praised Lee's decision, saying, "we are pleased the judge recognized the importance of DNA in this case."

"It's ironic that the attorney general is fighting so hard to prevent DNA testing of a prisoner who may be innocent of the crime, when the Virginia Supreme Court and the General Assembly are looking for ways to make it easier for innocent prisoners to get DNA tests in state courts," Brace said.

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