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After DNA test, Richmond man awaits pardon in rape case

By: Frank Green | Richmond Times Dispatch

DNA testing of material found in the old case files of Mary Jane Burton, a deceased state forensic serologist, may clear a sixth man of a rape.

Victor Anthony Burnette, 56, of Richmond served eight years for a 1979 rape that he always said he did not commit.

He said he first sought DNA testing when he was released from prison in 1987 but was told all the evidence had been destroyed.

In 2005 he learned from a newspaper story that DNA testing of biological evidence discovered in Burton's files had exonerated five men of rape. A DNA testing project ordered by then-Gov. Mark R. Warner is under way to clear any others who may be innocent.

Burnette called the state forensic lab and spoke with, among others, Paul Ferrara, then the director. Material was found in Burton's files from his case and sent for testing. The results were forwarded to Richmond Commonwealth's Attorney Michael N. Herring in 2006.

"I knew what the results had to be -- it wasn't me," Burnette said.

When he officially learned that was the case, "I felt great for about three days and then it kind of wore off. I still had a battle ahead of me," he said, referring to his effort to win a pardon.

Herring, who took office in 2004, said yesterday that the DNA test results do not prove innocence but show that sperm left by the attacker did not come from Burnette. Herring said that raises reasonable doubt about his guilt.

Herring said his office told the parole board this week that he had no objection to a pardon.

"We commented two years ago we had no objection to his pardon request," Herring said. "This is old. I'm not sure why this is coming back," he added.

Burnette said it is his understanding that the victim in the case still believes he is guilty despite the DNA test results. Burnette's lawyer, Murray Janus, filed a petition requesting an absolute pardon on April 20, 2007, with Gov. Timothy M. Kaine's office but has not heard back.

Kaine spokesman Gordon Hickey confirmed that Burnette's petition is under consideration. "The normal process is that the petition goes to the parole board, which investigates and analyzes," he said.

"That board makes a recommendation to the secretary of the commonwealth and the secretary makes a recommendation to the governor," Hickey said.

The petition says the 19-year-old victim reported the Aug. 2, 1979, rape to police three days later, "despite reportedly seeing the individual outside her apartment again the following night after the alleged rape."

"What is paramount is that DNA testing has totally excluded Victor Burnette as the perpetrator," Janus wrote in the petition to Kaine.

Tom Gasparoli, spokesman for the Virginia Department of Forensic Science, said yesterday that the project Warner ordered in 2005 continues.

He said the relevant commonwealth's attorneys are notified when DNA testing shows that a convicted person is eliminated as a contributor to the biological evidence in a case.

So far, Gasparoli said, "there are eight cases in that group. . . . It is up to the legal system to determine the significance of those results in any given case."

Burnette, a construction worker who lived near the victim at the time of the rape, runs a home-improvement business. He said his parents and many of his friends have died. Perhaps his darkest moment was when the jury decided he was guilty.

He said another low moment was in 1987, when he was told the evidence was destroyed.

"That broke my heart. That was my only chance right there," he recalled thinking at the time.

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