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Virginia DNA Law Under the Microscope 
A rapist convicted 14 years ago is first to use Virginia statute to seek new tests in an old case 
Siobhan Roth
Legal Times 

July 13, 2001 

The crime was every parent's nightmare: the rape of an 8-year-old girl by a neighbor. Newport News, Va.'s Kenneth Balka was convicted and sentenced to 42 years in prison. But 14 years later, Balka maintains his innocence and claims a DNA test will exonerate him. 

Last month, Balka became the first convicted felon in Virginia to petition for DNA testing under a new state law. As a result, he is the first to test the will of local prosecutors to submit to the statute, and his case is the one that may set the tone for debate over the success of reform efforts in a state widely criticized for having an overly harsh criminal justice system. 

Newport News Commonwealth's Attorney Howard Gwynn has not said whether he will agree to Balka's request. His office must respond to the petition by July 16. 

For prosecutors, Balka may be the perfect subject: He's not on death row, eliminating debate over the death penalty. He was represented at trial by a privately retained lawyer, not appointed counsel. The biological evidence has remained in the custody of the Newport News clerk's office. And perhaps most important, the evidence and testimony against Balka was powerful. 

If Gwynn agrees to the testing and the results confirm Balka's guilt, the state will have ammunition to argue that its criminal justice system needs no mending. 

If Gwynn objects, and the court turns Balka down, the decision may call into question the state's commitment to clearing up doubts about old cases, and will feed criticism of the new law. 

But Balka's counsel, Christopher Amolsch, is optimistic. "Mr. Gwynn is an honorable man," says Amolsch, an Alexandria, Va., attorney who is a board member of the local chapter of the Innocence Project. "I think if it's up to him, he will not oppose the motion." 

TESTING DAY

The Virginia statute enacted May 2 allows a convicted felon to petition the trial court where he was convicted for the testing of biological evidence from his case. To meet the requirements of the law, prisoners must have been convicted after a trial or have been sentenced to 20 years or more after entering a guilty plea. The law kicks in only when the tests may prove the "actual innocence" of the prisoner. And the tests may only be conducted if the evidence or the testing was unavailable at the time of trial, not if trial counsel simply failed to seek it. 

That restriction angers defense counsel. "If the evidence was available but not subjected to testing, you lose" says Richmond defense attorney Steven Benjamin, who sat on the Virginia Crime Commission's DNA task force that helped draft the law. "You can scream innocence all day, but you are not going to get it tested." 

The law is similar to recent statutes enacted in 13 other states and legislation now pending in Congress, but Virginia has some of the highest barriers to testing. In other jurisdictions, such as Texas and Maryland, a wider class of felons may seek such tests. Failure to seek a test at trial would not bar a post-conviction petition. 

Though the Virginia attorney general's office handles all other types of criminal appeals, local prosecutors will be the ones handling the petitions under the new law. 

According to a spokeswoman for Virginia's acting attorney general, Randolph Beales, the AG's office will neither coordinate responses from local prosecutors nor provide any oversight in how they deal with the testing requests. 

Defense attorneys around the country usually warn against the political pressures on local officials and the disparate ways justice is often meted out. But some defense attorneys in Virginia say that leaving the petitions in the hands of the commonwealth's attorneys may be beneficial. 

"The Virginia attorney general's office has such an institutionalized knee-jerk response [to post-conviction claims] that they will always defend the finality of a conviction," says Benjamin. "I quite frankly place greater reliance on the individual commonwealth's attorneys to make a determination of whether testing should be imposed." 

Marvin Miller, president of the Virginia College of Criminal Defense Lawyers, agrees. Because local prosecutors "have hands-on contact with the people of Virginia," he says, "they don't want to make victims of innocent people and their families." 

Several prosecutors say that they are open to the idea of post-conviction testing. 

Robert Beasley, the commonwealth's attorney for Powhatan County, says, "I don't think anybody wants to withhold evidence from someone who might be innocent." 

Gwynn, in a statement issued after Balka filed his request, stated that if there is evidence that could exonerate Balka or other convicted felons, his office will not "stand in the way of the production of that evidence." 

BLOOD TEST

Balka was tried in 1987, when DNA testing was in its infancy. 

According to court records, including Balka's own trial testimony, the victim and other children were hanging out with Balka in his barn, where he had a telescope, on a warm April afternoon in 1986. Balka was working in and around the barn and sharpened a knife for one of the neighborhood boys. At some point, Balka said, he decided to go into his house. 

Balka testified, "As I approached the rear door and went to grab the rear door, she turned to me and looked and said, 'I just want to come in and watch television. I'll sit there and be quiet. I'll be good.' And she looked up at me, and I said to myself, 'What the hell,' and I let her -- I just opened the door and she went in front of me." 

Balka's story and the girl's version diverge at that point. According to the girl, the doors to Balka's house were locked and she couldn't get out. Though her testimony was scattered, she said that he had showered while she watched TV, and that after he showered he raped her in his bedroom. 

She described his bathrobe, which was later tested and shown to have semen on it. 

Balka testified that he "did not touch her, hold her, grab her in any way, shape or form." 

He acknowledged that he took a shower while she was there. When police arrived that evening, he was wearing the bathrobe she described. 

The doctor that examined the girl found some bruising around her genitalia, but no blood or tearing. But sperm found on swabs from her thigh and vulva, as well as sperm found on the bathrobe, revealed that the donor was of the same blood type as Balka. 

Prosecutor Cathy Krinick told the jury that the results of those tests narrowed the pool of suspects to about 16 percent of the population. Combined with the girl's testimony, the jury was convinced of Balka's guilt. 

In his current petition, Balka notes that while the evidence at trial established a blood type match, no DNA analysis was performed because "the sample was too small for existing technology." 

However, Newport News Circuit Court Judge Verbena Askew need not make her decision based on technological advances. If she rules that there is not a good chance that a DNA test would exonerate Balka, she can deny the test under the language of the statute. 

Testing Balka's biological evidence, Amolsch says, is "inherently the right thing" to do. "There is now a way to double-check that a system designed by humans works." 

   

 
 
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