- The Washington Times - Sunday, January 13, 2008

RICHMOND (AP) — Felons convicted before DNA testing was widely in use will not be notified when biological evidence is found in old case files, a state review panel decided.

The decision leaves the call to authorities to determine whether DNA testing is warranted in such cases. They also will interpret whether the results have any bearing on innocence.

The policy was approved last week by a 6-5 vote of the state Forensic Science Board. The vote sparked a strong response from dissenting members and advocates of DNA testing.

Steven D. Benjamin, a criminal defense lawyer and board member, called the decision “unconscionable.”

“It’s bad policy and there really is no justification for this kind of inaction,” said Mary Kelly Tate, director of the Institute for Actual Innocence at the University of Richmond School of Law.



“I know that the people on the board are fair and decent, but this decision does not reflect fairness,” Miss Tate told the Richmond Times-Dispatch.

The Virginia Department of Forensic Science has searched 530,079 paper files dating from 1973 to 1988. The department has found 2,215 files that contain crime-scene biological material and include a suspect’s name.

Five men wrongly convicted of rape have been cleared with evidence from the old files.

Board member S. Randolph Sengel, Alexandria’s commonwealth’s attorney, said prosecutors in Virginia will do the right thing if evidence of innocence is turned up.

But another board member — Dr. Leah Bush, the state’s new chief medical examiner — said that notifications should be made when possible out of fairness.

Peter Marone, director of the Department of Forensic Science, told the board that lawyers who are asking whether evidence had been found in the files of clients are being told.

The forensics review is based on the practice of the late Mary Jane Burton, a former state forensic serologist. She saved biological evidence in her case files even when DNA evidence was not being used in criminal investigations.

Marvin Anderson was convicted wrongly of a 1982 rape and spent 15 years in prison until his parole in 1997. Subsequent DNA testing cleared Mr. Anderson and implicated the real rapist, who later was convicted.

Former Gov. Mark Warner subsequently ordered all of Dr. Burton’s files to be checked.

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