Virginia will for the first time review DNA evidence in cases involving inmates who have been executed and those on death row as part of a broad response to an audit critical of the state's crime laboratory, officials said yesterday.
Although it marks the first time a state has volunteered to revisit the cases of executed felons on a large scale, the review, for now, stops short of actually testing or retesting DNA. Instead, experts will determine whether scientists who handled the evidence followed proper procedures.
The capital cases will be among more than 160 reviewed for procedural questions. Ellen Qualls, spokeswoman for Gov. Mark R. Warner (D), said yesterday that the review will be restricted to cases with evidence that is particularly difficult to test because only a small amount of DNA was present at crime scenes. She said it was unclear how many and which death penalty cases would meet the criteria.
"The lab will take a look at the case files for the 23 inmates currently on death row as well as cases that resulted in an execution . . . and look to see if there was low-level DNA used in those cases," Qualls said. If the review discovers problems, officials would then determine whether new tests should be conducted, she said.
Richard Dieter, executive director of the District-based Death Penalty Information Center, said the review is "a good first step." He said states must police their own crime labs if they want jurors and the public to trust DNA evidence.
"If we can't get to the bottom of this, there will always be doubt," Dieter said. "It will be harder to get convictions if the sense is the state only gets it right 75 percent of the time. They've got to reestablish credibility, and I think to do that you have to face the difficult question of whether they may have made mistakes in the past."
The critical audit, released Friday, focused on a single case in which a scientist reported flawed data. The report did not uncover any systemic problems at the lab, but the state, hoping to restore faith in one of the nation's most respected crime laboratories, agreed to revisit old cases and make other changes in laboratory policy.
The audit involved the case of Earl Washington Jr., a former death row inmate who spent 17 years in prison before he was pardoned in 2000. In its review, the American Society of Crime Laboratory Directors concluded that a chief scientist failed to follow proper procedure when testing one piece of evidence in Washington's case and that his ultimate analysis of that evidence was wrong. The auditors also concluded that an internal review failed to flag the errors made by the scientist, Jeffrey Ban.
In addition to the capital cases, Qualls said, the reexamination will include all cases Ban has analyzed since 1999 as well as three cases from each of the lab's 40 examiners. "It is the governor's hope that this clears up the perception that there is a widespread problem," she said.
But Betty Layne DesPortes, a criminal defense attorney from Richmond who chairs a panel for the American Academy of Forensic Sciences, called on the state to reveal more details about the review, including who would be checking the work of examiners.
"A lot of this is not clear as to what's going to be done internally and what's going to be done externally," she said. DesPortes raised the possibility that Ban's error stemmed from a lack of training or improper training and said if that is the case, it might make the credibility of similarly trained colleagues suspect. It is not clear whether the review will include some of Virginia's most controversial capital cases, such as that of Roger Keith Coleman, who was executed in 1992. Coleman, a coal miner from Southwest Virginia who was convicted of the rape and murder of his sister-in-law, Wanda McCoy, claimed he was innocent. Early DNA testing was inconclusive but suggested he was the killer.
Also yesterday, Seth A. Tucker, an attorney for Derek R. Barnabei, who was executed in 2000, sent a letter to Warner asking that Barnabei's case be part of the review. The state said DNA evidence confirmed Barnabei's guilt in the 1993 rape and murder of his girlfriend, but his attorneys said the evidence might have been tainted.
