Richmond Times Dispatch

DNA tests clear 2 men of rape
Evidence exonerates 2 found guilty of rape, spurs further reviews
BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
Thursday, December 15, 2005

Random DNA testing ordered by Gov. Mark R. Warner in 31 long-closed criminal cases has led to the exoneration of two men convicted of rape.

It also led Warner yesterday to order a more extensive review and further DNA testing to find if there are other innocent people who can be cleared by evidence saved by state serologists, some of it decades old.

"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," the governor said.

Random review ordered

Evidence stored by serologist Mary Jane Burton, now deceased, had earlier led to the exonerations of three men convicted of rapes. It was those exonerations that prompted Warner to order the random review of other cases last September.

According to Warner's office, prosecutors in Norfolk and Alexandria have investigated the two most recent cases and requested the governor issue absolute pardons.

Twenty-nine of the 31 cases had resulted in convictions, said Ellen Qualls, a Warner spokeswoman.

Justice system questioned

The testing raises serious questions about the criminal justice system in Virginia and across the country, critics said.

"This is just unbelievable, absolutely unbelievable," said Barry Scheck, a co-founder of The Innocence Project, which has helped clear 164 people of crimes through DNA testing.

"The significance of this is extraordinary. We're talking about a random sample of convicted felons and we're getting a 7 percent exoneration rate," said Scheck.

"If the criminal justice system is running an exoneration rate that even approaches that, we have to have concerns about the problem of innocence in capital punishment," he said.

Last month, Warner commuted the death sentence of Robin Lovitt to life in prison, citing the destruction of evidence in the case by a court clerk. Lovitt's lawyers argued that could have exonerated Lovitt or at least have raised doubts about his guilt.

"This confirms the wisdom of his decision in the Lovitt case," Scheck said.

"Governor Warner deserves enormous praise for doing this [testing] . . . We understand now he's going to look at hundreds of cases. He's the only governor in the country who has really reached out and done this," Scheck said.

The two men most recently cleared by DNA are no longer in prison and may have been unaware they had a right to request the testing or that the evidence even existed, said Kevin Hall, a Warner spokesman.

Both men, Hall said, have requested that their identities remain secret for the time being. Warner, who leaves office next month, will consider their pardons "on an expedited basis," Hall added.

In the Alexandria case, the DNA testing not only eliminated the person convicted but led to a match in the state's DNA data bank that implicated someone else in the crime, the governor's office said.

Several former serologists saved biological evidence from their testing in their case files between 1973 and 1988, before the use of DNA.

Nearly all of the 31 cases recently studied were handled by Burton, who kept samples in her files although the practice was contrary to state lab practices, Hall said.

To meet national accreditation standards, the lab in 1989 began requiring that such evidence be returned to the law enforcement agency investigating the case.

According to the Department of Forensic Science, it has stored 660 boxes containing an estimated 165,000 case files from 1973 to 1988.

In September 2004, in light of the Burton cases, Warner directed the state lab to review 10 percent of the 1973-1988 files in which forensic serological examinations -- but no DNA testing had previously been conducted that led to convictions, primarily in sexual-assault cases.

The review by Bode Technology Group Inc. of Springfield turned up 284 samples in 31 cases that met Warner's criteria.

Paul Ferrara, director of the Virginia Department of Forensic Science, said 300 or more additional cases might meet Warner's criteria.

"One could apply the same ratio of exonerations -- two out of 31 -- but . . . that is unlikely to be statistically valid," Ferrara said in a statement.

Ferrara said last year that Burton was not the only examiner who kept such samples, but that most of those remaining are hers. Ferrara has said that Burton may have kept such evidence in hundreds of cases over the years.

She retired around 1990 and died in 1999. Requests for DNA testing using evidence in Burton's case files led to the earlier exonerations of Marvin Anderson, who had been convicted in Hanover County, and Arthur Whitfield and Julius Ruffin, convicted in Norfolk.

Keith Betscher of West Chester, Ohio, a nephew of Burton, said, "I'm ecstatic. Too bad we can't all have such an effect on society six years after we die."

Betty Layne DesPortes, a Richmond-area defense attorney and chairwoman of the jurisprudence section of the American Academy of Forensic Sciences, called for an investigation into how the wrongful convictions occurred.

"We really need to figure out what went wrong with these cases so we can try to keep it from happening in the future," she said.


Contact staff writer Frank Green at fgreen@timesdispatch.com or (804) 649-6340.


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