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Inmate Will Not Be Tried in 1981 Norfolk Rapes

Prosecutor Says Evidence Is Lacking, Despite DNA Match That Also Cleared Others

By Jerry Markon
Washington Post Staff Writer
Saturday, December 11, 2004; Page B01

Virginia authorities said this week that they will not prosecute a man whose DNA implicated him in rapes for which two innocent men served 44 years in prison.

Norfolk Commonwealth's Attorney John R. Doyle III said that even though genetic material from the 1981 crimes turned out to be that of a convicted rapist, the DNA results would not be admissible in court. The suspect, Aaron Doxie III, is already serving a life sentence for an unrelated rape, so there is no need to get him off the streets, Doyle said.

Aaron Doxie III is serving a life term.

Doxie was implicated in the same series of DNA tests that exonerated two inmates who had served lengthy prison terms.

Doyle's decision not to prosecute Doxie has triggered a debate in the state over the strength of DNA testing. Four Virginia men have now been cleared by DNA evidence that implicated another suspect. But in three of those cases, the suspects have not been tried.

"DNA is not always a magic bullet," said Lisa Hurst, a consultant with the law firm of Smith Alling Lane and an expert on DNA policy. "In many cases it's circumstantial. There are some cases, especially violent ones, where you can get a conviction solely on DNA. But those are few and far between."

Referring to one of the Norfolk cases, she added: "You would kind of hope they would prosecute this, but maybe from the prosecutor's perspective, you are going after somebody who already can't get out of jail."

An attorney for Doxie did not return telephone calls yesterday.

Doyle said yesterday that the test results indicating a DNA "hit" on Doxie would not be admissible at trial under Virginia rules of evidence.

The problem, he said, is what lawyers call "chain of custody." The nurse or doctor who took the sampling at the hospital would have to testify, followed by police officers and others who handled the evidence.

Doyle said the case is so old that the files have been destroyed, and there is no way to even determine who those witnesses would be. Another key witness, the state lab official who did the actual DNA testing, has died.

Prosecutors did turn over the DNA results implicating Doxie to the Virginia parole board. "We don't have to worry about him being on the streets to attack another woman," Doyle said.

Doyle said Doxie probably committed the rapes for which Arthur Lee Whitfield and Julius Earl Ruffin served a total of 44 years before they were cleared.

An attorney for Whitfield, Michael Fasanaro, said he understood the prosecutor's decision. He added that a case against Doxie might also have run into trouble because the victim has said she still believes Whitfield is the rapist.

"They don't have a positive ID. The witness would be asked, 'Can you identify this man as the person who raped you?' And she'd say, 'No I cannot.' What are you going to do with a case like that?" Fasanaro said.

But Peter Neufeld, a DNA expert at the Innocence Project at the Benjamin N. Cardozo School of Law, said Doyle's argument is "complete nonsense." In at least a dozen cases nationwide, he said, DNA evidence exonerated someone and then implicated another suspect, who was prosecuted and convicted.

One of those cases was in Virginia, where Marvin Lamont Anderson of Hanover County was cleared by DNA evidence in 2001 after serving 15 years in prison for rape. Last year, the man implicated in the DNA testing was convicted.

The debate reflects the passions that have surrounded the issue of DNA testing, which has resulted in the exoneration of more than 100 prisoners across the country in recent years. At least six have been in Virginia, which until recently was known for its strict post-conviction rules and which blocked inmates from seeking DNA testing unless they made the request within three weeks of their sentencing.

In three of the Virginia cases, DNA testing has implicated someone else, but authorities have declined, or been unable, to prosecute. One case is that of Earl Washington Jr., who received national attention after spending 17 years in prison -- including 9 1/2 on death row -- in the 1982 rape and killing of Rebecca Lynn Williams before he was exonerated through DNA tests.

Kenneth Tinsley, 58, has been named by police in court records as a suspect in the slaying of Williams, 19. Tinsley's DNA was found in the crime scene evidence tested as part of Washington's exoneration, the court records say. Tinsley told police that he did not commit the crime and had no memory of visiting the town, according to court documents unsealed last month.

In May 2003, Virginia Gov. Mark R. Warner (D) pardoned Ruffin, 49, of Virginia Beach, who spent 21 years in prison. After DNA testing implicated Doxie, the inmate was charged, but authorities had to drop the case because of what Doyle yesterday called evidentiary problems.

After Whitfield was cleared in August, Warner took the unprecedented step of ordering the state's DNA laboratory to initiate testing in about 40 old cases, mostly sexual assaults, even though prisoners had not sought the testing.

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