More Va. cases of innocence possible
Published: June 24, 2012
Six people have been exonerated in a landmark DNA testing project that started seven years ago and was made possible by biological material discovered in old forensic case files.
Now, officials believe at least four other people may have been wrongfully convicted, and they are taking another look at those cases.
More than three dozen commonwealth’s attorneys received reports in recent years from the Virginia Department of Forensic Science in 78 cases where a convicted person was not identified — or excluded — in DNA testing of the old evidence.
Last month, the prosecutors were notified that unless the DNA reports were critical to an ongoing investigation, they would be subject to public disclosure on July 1. As of last week, the department said it had been asked to withhold four reports.
Some of the 78 exclusions show innocence, many may prove nothing and the significance of others may be arguable. More than a dozen of the 78 people excluded are dead, and an unknown number have not been found.
That leaves the decision on whether to investigate the matter in those cases up to prosecutors, police and living defendants who can be located with no input from defense lawyers or an independent panel or agency.
Earlier this year, the Virginia General Assembly, which was concerned that potential innocence cases might not be aggressively pursued, set the July 1 deadline that makes the reports subject to release under the Virginia Freedom of Information Act.
At least five of the 78 reports concern Richmond cases; Richmond Commonwealth’s Attorney Michael N. Herring, who supported DNA exonerations in two Richmond cases, is standing by convictions won against the three others.
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A recent study of the Virginia data by the Urban Institute estimated a wrongful conviction rate of 8 to 15 percent in sexual assaults from 1973 to 1987 and indicated 38 wrongful convictions, among them the three cases disputed by Herring.
The Urban Institute conducts research on social, economic and criminal justice issues.
The National Institute of Justice, which paid for the Urban Institute study, cautioned that the data, and the findings based on that data, have limitations that should prevent generalizations.
And the three Richmond cases, while showing that test results are arguable, also appear to illustrate an acknowledged weakness in the study: the failure to get to courthouses to better assess the relevance and significance of the test results.
The Urban Institute’s contract for the study was not extended so the old court files could not be researched.
“Without context, the science is meaningless,” said Rockne Harmon, a former California prosecutor and DNA expert. “It is puzzling why they forged ahead without having the most basic information.”
John Roman, the lead researcher in the Urban Institute study released last Monday, defends it. What researchers wanted to get at were wrongful convictions, which is different from actual innocence, he said.
“I can tell you that every single time we ruled a case supportive of exoneration, it was because there was DNA evidence that specifically excluded the convicted offender,” Roman said.
The key question, he said, was that if the DNA evidence had been known at the time of the trial, would the excluded person still have been convicted.
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Roman, along with Peter Marone, director of the Department of Forensic Science, and others say the institute’s study is just a beginning and that much work remains to be done, particularly at courthouses.
Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, agrees but complained that “we don’t yet know whether these (Urban Institute) numbers are at all accurate, which is a sad commentary after seven years.”
“This is just more evidence that this (Virginia) project has needed more transparency from the beginning,” she said.
Much of the murk surrounding the cases could have been resolved long ago had the testing results been available, Armbrust believes.
Roman said, “We know that lots of this really, really important contextual information is still available, and with more time and more support, we could go to the courthouses.”
He said the Urban Institute study first envisioned having a retired judge, a defense attorney and a prosecutor evaluate the cases and say whether the DNA test results support a wrongful conviction.
“What we’d love to be able to do is get enough information to say something about actual innocence,” he said.
Roman said, “Somebody neutral needs to get in here. We’ve already done a lot of the work, so it seems easiest for us to get going, but a neutral board would be great.”
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