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Williamsburg DNA case raises question of effort
A recently surfaced Williamsburg case again raises questions about whether local authorities across the state are aggressively pursuing potential exonerations after receiving new DNA evidence in old felony cases.
The Virginia Department of Forensic Science has issued reports that exclude at least 76 felons as the source of biological evidence in their cases. The reports have been tightly guarded in the ongoing, $5 million-plus groundbreaking project, which began in 2005.
The status of most of the 76 cases is unknown, and as of last month, 29 of the felons had not been notified that the new DNA reports existed.
Among them is Bennett S. Barbour, who learned two weeks ago that authorities in Richmond and Williamsburg have had for 18 months a report excluding his DNA and identifying the DNA of a known offender.
Barbour's legal team and Williamsburg authorities believe the DNA report exonerates him in a 1978 rape. But officials said they could not find him to deliver the news, though he lives just 5 miles from where he was arrested 34 years ago.
"When Bennett Barbour is excluded on the basis of a DNA test in June of 2010, but doesn't find out about it until 2012, there is a serious problem with the notification process," said Matthew Engle, legal director of the Innocence Project Clinic at the University of Virginia School of Law and one of Barbour's lawyers.
Brandon Garrett, a professor at U.Va.'s School of Law and an expert on wrongful convictions, said there's been no evidence that prosecutors are trying to resolve these old cases that have new DNA evidence.
"We haven't exactly heard reports of any commonwealth's attorneys making some announcement about what they claim to be doing in one of these cases," he said.
The Urban Institute, which is reviewing the confidential project results from the Virginia Department of Forensic Science, said recently that it has tentatively found 37 potential wrongful convictions among the cases.
The Richmond Times-Dispatch filed a request under the Freedom of Information Act with the Department of Forensic Science to obtain documents concerning the 76 defendants whose DNA, as of last month, was excluded by testing. The department refused to release the documents last week, saying they are part of criminal investigation files and are therefore exempt from disclosure.
The Department of Forensic Science also refuses to release information in the 13 of those 76 cases in which the convicted person has died.
"It's hard to imagine any legitimate justification for keeping this information secret," Engle said. "Not only these individual convicts but also their families and the general public have a strong interest in knowing when the criminal justice system fails."
It was not until after Barbour's lawyers contacted the Williamsburg commonwealth's attorney's office last month that the rape victim also learned that she had identified the wrong man, and that the man DNA indicates was the real attacker had not been charged.
Steven D. Benjamin, a Richmond lawyer and member of the Virginia Board of Forensic Science, and others repeatedly expressed concerns in 2007 that the convicted person, not just law enforcement as was then envisioned, had to be told about the DNA testing.
"The only conscionable thing we could do was at least notify people that this DNA existed. I understood that there were likely innocent people who were still in prison and that we had the key to their freedom," he said.
Benjamin believes just sending test results to police and to commonwealth's attorneys was unfair to them and to the defendants. "The primary duty of prosecutors is to investigate ongoing cases. They have their own problem with limited resources," he said.
"To expect a prosecutor who is working full-time on serious, ongoing cases to go back and investigate for possible innocence a case from 20 years ago — that's noble, but it's naïve," he said.
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Unlike in Barbour's case, the DNA results in the 75 other exclusion cases might have no bearing on guilt or innocence — but so much of Virginia's post-conviction DNA project is confidential, few outside law enforcement know the significance of those test results.
"I've never run into this before," said Nate Green, the Williamsburg/James City County commonwealth's attorney since 2007 who is handling the Barbour case, which was prosecuted when he was 8 years old. "This is a first time for me.
"Obviously a horrible mistake was made and this is a nightmare for any prosecutor," Green said, adding that it is an even worse nightmare for Barbour and the victim. He said that his office will work as quickly as possible to help clear Barbour, who would serve 4½ years in prison after his 1978 conviction.
Green said this was not a case where the report came in and his office ignored it; he said efforts were made by police to contact Barbour and the victim by mail, but the addresses found by police were no longer valid.
Barbour's current address and telephone number are readily available on the Internet. Barbour called the Times-Dispatch after he was contacted by Jon Sheldon, a volunteer lawyer who was asked by the Department of Forensic Science to help track down 29 convicted felons whose DNA was not found in tested biological evidence.
Barbour said Sheldon told him there had been testing in his case and gave him the names of lawyers he could call for assistance.
Deirdre Enright, with the Innocence Project Clinic at the University of Virginia School of Law and one of Barbour's lawyers, said that after Barbour contacted her group, they found the victim and passed her contact information on to Green.
"DNA is an incredibly powerful tool," Green said. "I thank God that we have it so people like Mr. Barbour, who had wrong done to them, can be exonerated. And I also thank God that we have it so the people who were getting away with it now cannot."
The DNA project, the first and largest of its kind in the nation, was ordered by then-Gov. Mark R. Warner in 2005 after a sample testing of evidence in 31 old case files from 1973 through 1988 cleared two men wrongfully convicted of rapes.
Since 2006, there has been DNA testing in hundreds of other old cases, but only two more people have been exonerated. (One other person, now deceased, was cleared of a rape and murder for which he was wrongfully convicted.)
Warner, now a U.S. senator, said last week that the initial sample testing indicated the full project was needed.
"Frankly, I was hoping that the (sample testing) would have shown that there were no mistakes," Warner said.
He said that if the means of getting to the truth in serious old cases is available, it should be used. It was Warner who approved DNA testing that proved once and for all — and contrary to widespread claims otherwise — that Virginia did not execute an innocent man in 1992 when Roger Keith Coleman was electrocuted for a rape and murder.
Warner has not been involved in the effort since he left office in 2006 but said, "If you're wrongly imprisoned, every day you're there is an injustice."
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The Department of Forensic Science has acknowledged things have moved slower than originally hoped. For one thing, the job proved far larger than Warner or anyone else anticipated.
Instead of an estimated 150,000 files, it involved searching more than 500,000 old files looking for swabs or fabric swatches with blood, semen or other biological material taped to sheets of paper.
Initially, $1.5 million was set aside for the effort, which has been supported since 2008 with a $4.5 million grant from the U.S. Department of Justice that expires March 31.
Initially the convicted people were not going to be notified that the old evidence had been found: Only law enforcement would be given the test results to determine if action was needed.
At the prodding of Benjamin, the Mid-Atlantic Innocence Project and others, the Virginia General Assembly ordered the forensic science board in 2008 to notify more than 1,000 convicted people that biological evidence had been found in their old case files that might be suitable for testing.
The notifications have been difficult in many cases because the old department files had only the suspects' names and only rarely personal identifiers such as Social Security numbers or dates of birth.
Those still in prison were more easily located than those long released. Volunteer lawyers, the Mid-Atlantic Innocence Project and the Virginia State Crime Commission have also pitched in, but many more notifications have not been made.
Stephanie Merritt, counsel for the Virginia Department of Forensic Science, said that in every case in which the convicted suspect was eliminated in testing, she telephones the local prosecutor.
"I typically inform the commonwealth's attorney that, while I do not know the facts of the case and, therefore, am unable to assess the weight or importance of the information we are reporting, I am calling to draw their attention to the report," she said.
Gail D. Jaspen, chief deputy director of the department, said that aside from the 13 deceased individuals and 29 missing ones, the rest of the 76 excluded defendants have been notified.
But Garrett of U.Va.'s law school said the letters sent to notify the felons about this new DNA testing were vague and some could even be viewed as threatening.
"Just simply saying what the purpose of the DNA testing is would help — and there should be a separate letter sent out to communicate to people who are excluded by DNA," he said. "I don't think the state can wash their hands of this and say, 'Hey we sent out letters. If people wanted to follow up, they could.' The letters don't say much of anything. They don't tell people they have been excluded."
Merritt said that in crafting the letters to convicted people, the department took into consideration that there are many factual nuances involved in interpreting the results of DNA analysis.
The department, she said, is not in a position to give a convicted suspect in the program legal advice. Cover letters give contact information for the Mid-Atlantic Innocence Project should the recipient want some legal advice.
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