- The Washington Times - Thursday, August 7, 2008

RICHMOND | The Virginia Forensic Science Board Wednesday rejected a plan to ask volunteer attorneys to help locate and notify felons of old biological evidence in their cases that could be retested.

Board members instead chose to mail certified letters to those who committed certain felonies between 1973 and 1988 in which DNA evidence was preserved to notify them that it exists and is available for testing.

While some board members questioned the reliability of sending such important information through the mail, others said it was better than transferring their responsibility to nongovernment lawyers over which they had no control and who were not eligible to receive the private information.

Virginia’s one-of-a-kind DNA testing project began in 2005 when then-Gov. Mark Warner, a Democrat, ordered examination of all case files from 1973 through 1988 after five men were cleared of rape charges with biological evidence preserved in their files long before DNA testing got under way in the early 1990s.

Since then, the Department of Forensic Science has scoured more than 500,000 case files and identified nearly 1,000 defendants with old DNA evidence in their cases.

In March, the General Assembly ordered the Forensic Science Board, which oversees the Virginia Department of Forensic Science, to notify all felons if biological evidence was found in their file.

In June, a subcommittee of the board decided to ask licensed Virginia attorneys to help locate and notify the convicts, but the Department of Forensic Science refused to turn over the files because they contained private information.

On Wednesday, the nearly four-hour debate centered on what exactly legislators had intended the board to do.

The directive says that the board “shall ensure” that the felons are informed that the evidence exists and is available for testing. It goes on to say that the Department of Corrections must provide last known addresses for those who are to be notified so that the board can send them letters.

The problem: Of the 941 defendants involved in the cases, contact information wasn’t available for more than 300 of them, and for those with matches in the system some of the addresses are 20 and 30 years old.

Steven D. Benjamin, a criminal defense lawyer on the board, argued that the General Assembly’s intent was to make sure the notification was made and that it didn’t say the letters had to be mailed. Volunteer attorneys could find the people and hand-deliver the letters, he argued. Nearly 200 attorneys volunteered to do the pro bono work.

Mr. Benjamin’s motion to ask the attorneys to help was defeated after board Chairman Joseph Bono cast the tie-breaking vote.

Instead, the board voted 7-3 to send certified letters after the Virginia State Police worked with the corrections department to try to find the best available address.

Board members agreed the letters wouldn’t reach everyone who needed to be notified, but they said it was a first step that would be followed up until each person who possibly could be exonerated by the evidence knew that it existed.

“I fully anticipate that we will be back again to discuss phase two,” said Marla Decker of the attorney general’s office. “While this is not a perfect solution, it’s a starting point.”

Peter Marone, director of the forensic science department, said the letters would go out as soon as he got the addresses from the board.

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