Richmond Times-Dispatch

Judge isn't sure Giarratano evidence exists
He says he will not order more searches but that he will listen if leads surface
Thursday, January 22, 2004

NORFOLK - A judge said yesterday that he is unconvinced that any biological evidence remains from a 1979 murder case that might be useful for DNA testing in former death-row inmate Joseph M. Giarratano's attempt to clear his name and win his freedom.

Norfolk Circuit Judge Marc Jacobsen concluded after more than two hours of testimony that local and state authorities had conducted a reasonable, good-faith search for such evidence in their files and archives. The judge refused to order additional searches but said he would listen if Giarratano's lawyers developed any promising leads on where to look.

"This court cannot proceed by way of sheer speculation . . . that maybe somewhere out there something exists," Jacobsen said.

Giarratano, 46, is one of Virginia's best-known prison inmates. Convicted of capital murder in 1979 and sentenced to death, he was spared two days before his scheduled execution date in 1991 by Gov. L. Douglas Wilder, who granted him a conditional pardon. Giarratano has remained in prison despite a dogged campaign by supporters who insist he is innocent.

He is incarcerated at the Red Onion "supermaximum" prison in Southwest Virginia. He is eligible for parole for the first time this spring.

Giarratano, a former scallop fisherman, pleaded guilty to capital murder in the strangling of 44-year-old Barbara Kline and the raping and stabbing of her 15-year-old daughter Michelle in the Klines' apartment in the Ocean View section of Norfolk.

He was convicted on the basis of circumstantial evidence and his own confessions, which he later recanted, saying he had awakened from a drug-induced sleep on the Klines' couch, discovered the bodies and assumed he was the killer.

In recent years, Giarratano and his lawyers have sought biological evidence such as vaginal and cervical swabs that were lifted from the victims' bodies 24 years ago, arguing that DNA tests of that evidence could exonerate him as they have others convicted of decades-old crimes.

Norfolk and Virginia authorities have maintained that the biological evidence in Giarratano's case was destroyed years ago.

Yesterday, lawyers for Giarratano attempted to track down that evidence through documents and the testimony of administrators representing the state Medical Examiner's Office, the state Division of Forensic Sciences and the Norfolk Police evidence unit.

Their testimony made it clear that the evidence Giarratano seeks was collected from the victims during the murder investigation in 1979, before DNA evidence was used in court. But it was not clear from the testimony or the documents where the evidence had gone, and the witnesses said their staffs had searched their files, cabinets and lockers in vain.

Giarratano's lawyers, John Moot and Donald P. Salzman of Washington, D.C., suggested that some of those efforts had been cursory or half-hearted. But Norfolk Commonwealth's Attorney Jack Doyle said authorities had conducted "a good-faith and diligent search." Doyle said that if any evidence surfaced unexpectedly, prosecutors would bring it forth immediately.

Jacobsen accepted Doyle's argument.

Giarratano, clad in a striped Norfolk City Jail uniform, attended yesterday's court hearing. A heavyset man with glasses, salt-and-pepper hair and a long, wispy mustache, he has used his 20-plus years in prison to study criminal law. He listened intently to the proceedings and conferred often with his lawyers.

Contact Bill Geroux at (757) 625-1358 or

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