Freed Man Still Fighting to Clear Name

By Candace Rondeaux
Washington Post Staff Writer
Monday, June 5, 2006

This is how the story typically goes: A man is wrongly convicted of two rapes he did not commit. He spends years behind bars before DNA evidence exonerates him and he is released. Soon afterward, he receives a governor's pardon.

That's not how Arthur Lee Whitfield's story goes.

Virginia authorities released Whitfield on parole in August 2004 when a Norfolk prosecutor said DNA evidence proved Whitfield did not commit the two rapes for which he had served 22 years in prison. Since then, Whitfield, 51, has tried to clear his name in the official record, seeking remedies in court. In December he requested a pardon from Gov. Timothy M. Kaine (D).

But there's a hitch: A victim in one of the rape cases is still adamant that Whitfield raped her, and she is trying to persuade the governor not to issue a pardon in her case.

It's been 25 years since she identified Whitfield as her attacker, but the victim says her memory of the man who raped her in Norfolk on Aug. 14, 1981, has not faded. He was a tall, muscular, light-skinned black man with hazel eyes, the same man she and a victim in a separate attack that night would later point to as Whitfield in police lineups and at trial. She also remembers just as clearly the day, years later, when she learned Whitfield had been released because authorities said DNA evidence exonerated him.

"I knew exactly what DNA was and how important it is, but in my case the first words out of my mouth were: 'There's been a mistake,' " she said.

She knows that the forensic science of yesterday is not the sophisticated and exact science of today. But the victim, whose name is being withheld because The Washington Post generally does not name the victims of sexual assaults, says she is convinced that the state forensic lab mixed up evidence.

She questions whether state authorities have done all their homework on Mary Jane Burton, the former state crime lab scientist. Burton was the original analyst on her case and the scientist whose work at the lab sparked a recent wave of exonerations and prompted former Gov. Mark R. Warner to order a review of hundreds of cases.

The victim contends that Burton, now dead, might have accidentally swapped a sample from her rape kit with the evidence from the other rape, which occurred two blocks away the same day. When the victim examined her case file two decades later, she found that samples from the second rape had been kept in the same folder. She said a blood sample identified as hers in the file differs from her actual blood type. The discrepancy, she argues, points to the possibility that Whitfield was her assailant, while another man raped the other victim. In a letter to Kaine, she asked the governor to make sure evidence in her case is retested.

"My attacker must not be allowed to deny his guilt because someone misfiled evidence more than 20 years ago. Arthur Lee Whitfield committed a terrible crime, and justice requires that he not escape responsibility for his actions," she wrote.

The victim's claim has been a serious obstacle in Whitfield's years-long quest to prove his innocence. Although legal and scientific experts agree that DNA evidence points to Aaron Doxie III as the rapist in the two 1981 Norfolk rapes, Whitfield's conviction is still on the books and he is considered a sex offender by the state. He must regularly report to a parole officer. Meanwhile, his bid to persuade the Virginia Supreme Court to declare him innocent failed in October -- the court said it had no jurisdiction over the case because he was no longer incarcerated.

The court's ruling means a pardon is the only option for Whitfield to clear his name.

State parole officials said they are still investigating his case because of the victim's objection.

A spokesman for Kaine said the governor would not comment on the case until a decision has been made.

Whitfield declined a request through his attorney, Michael F. Fasanaro Jr., to be interviewed. But Fasanaro said his client's unusual predicament is just one more example of the injustice Whitfield has suffered.

"The reason this is happening is because the victim in his case is waging a campaign against him at the governor's office," Fasanaro said. "She just won't accept the fact that she made a mistake and her mistake led to this man being in prison all these years."

The victim says she does not necessarily want Whitfield to return to prison, but she feels new DNA tests are needed.

"That's the reason I went to trial in the first place. If I wasn't absolutely sure, there's no way I could have done this to another human being, and he's a human being with a family no matter what he did," she said.

A jury convicted Whitfield in 1982 of rape based on the two victims' eyewitness identifications. He pleaded guilty to the second rape, which occurred within 45 minutes of the other one in the same neighborhood. He was then sentenced to 63 years.

DNA tests subsequently identified Doxie as the rapist in those two cases and in a 1981 Norfolk rape. Julius Earl Ruffin was wrongfully convicted in that case and spent 21 years in prison. The test results led Commonwealth's Attorney John R. Doyle III to order Ruffin's release in 2003 and Whitfield's release in 2004. Ruffin received a pardon from former Gov. Mark R. Warner (D) a few weeks after his release.

Doyle said he wouldn't prosecute Doxie, who is serving time for other rapes, for the crimes Whitfield had been convicted of because Burton cannot be called to testify about her methods. Thus, there is no way to establish in court whether the evidence from the rape kits was properly maintained and handled when it passed from investigators to the lab.

Doyle said he has sympathy for the victim, but he stands by his decision to free Whitfield.

"I've never seen anything leading me to believe that these results could or should be discounted," Doyle said.

Peter Neufeld, co-director of the New York-based Innocence Project, said the victim's claim is unusual but it raises genuine questions as to whether further testing is merited in Whitfield's case.

"Given the nature of the case and the nature of the seriousness of [the victim's] experience, it behooves the crime lab to test the validity of her allegations," Neufeld said.

Paul Ferrara, director of the Virginia Department of Forensic Science, said an error was unlikely. A test on a sample from the victim's case file showed a partial match with her DNA. Ferrara said the test results were carefully reviewed, but the crime lab did not perform additional DNA tests. The lab has no plans to retest samples in the Whitfield case unless an official request from the state is made, he said.

"The only scenario I can think of where that might be the case is that there is no sperm donated at all and that Doxie's sample contaminated hers somehow," Ferrara said. "Our testing is much more objective than eyewitness testimony. In today's courtroom, that DNA would exonerate [Whitfield] except in a scenario where he did not ejaculate." The victim contends that her attacker did not ejaculate.

Eyewitness identifications are often faulty and have led to dozens of wrongful convictions across the country, experts say. Gary Wells, a psychology professor at Iowa State University and a specialist in eyewitness identification, said it's often difficult for victims to erase the memory of the face they've long associated with their attacker, even when confronted with compelling evidence to the contrary.

"Once you believe that Person X was your attacker, Person X's face becomes the attacker, so, in other words, it's the belief that's causing the memory," Wells said. "It doesn't mean that she's a person who simply can't accept scientific evidence. It's just that now Whitfield has replaced her memory of the actual attacker."

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