Monday, March 9, 2009

RICHMOND | A Richmond man who spent eight years in prison for a 1979 rape has been cleared through a state project that tests decades-old DNA samples.

Testing completed in 2006 eliminated Victor Burnette, 56, as the source of biological evidence retained in the case, authorities said Friday.

Mr. Burnette petitioned Gov. Tim Kaine, a Democrat, for a pardon in April 2007, but the governor has yet to act.

“This has been a 30-year nightmare for me,” Mr. Burnette said, adding that he kept the tests a secret until now because he didn’t want news of his conviction to ruin his home-improvement business.

While the test does not prove Mr. Burnette is innocent, Richmond Commonwealth’s Attorney Michael Herring said it casts enough doubt to warrant a pardon.

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. He ordered it after five men were exonerated of rape charges from biological evidence preserved long before DNA testing began in the 1990s.

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

So far, eight cases have been found in which DNA evidence did not match the person who was convicted for the crime, said department spokesman Tom Gasparoli.

Mr. Herring said he found out in spring 2006 that testing excluded Mr. Burnette. He said he sent Mr. Burnette a letter that July, advising him to consult with his attorney.

Mr. Burnette’s attorney, Murray Janus, petitioned the Virginia Supreme Court to declare his client innocent, but it was denied because that applies only to those who are incarcerated. Mr. Janus then petitioned Mr. Kaine.

“He spent eight years of his life incarcerated for crimes that he scientifically could not have committed,” Mr. Janus wrote in the petition. “The effects of being branded a convicted felon and rapist still reside with him daily.”

Mr. Burnette says he was at home caring for his invalid grandmother when someone broke into a 19-year-old Richmond woman’s apartment and raped her Aug. 3, 1979. The woman identified Mr. Burnette as her attacker, and a pubic hair found at the scene was consistent with Mr. Burnette’s. He was sentenced to 20 years in prison, then placed on parole from 1987 to 1993.

DNA testing on the seminal fluid taken from the woman’s body was not available at the time, but the sample was preserved by state forensic serologist Mary Jane Burton, who had a habit of retaining blood, semen and saliva evidence. If exonerated, Mr. Burnette would be the sixth man cleared from her old case files. An absolute pardon would allow the conviction to be removed from Mr. Burnette’s record.

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