Pro Bono Lawyers Volunteer to Help
Washington, DC (August 5, 2008) – Virginia’s forensic laboratory system should notify people convicted during the years 1973 to 1988 that biological evidence in their cases has been found in the laboratory’s files that could be suitable for DNA analysis, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) said at its Annual Meeting Aug. 2. The meaning of the Virginia legislature’s order to provide exactly that notification, and whether the state should accept the volunteered public service of 200 Virginia lawyers to ensure accurate notification, will be the subject of a public meeting of the Virginia Board of Forensic Science this Wednesday, Aug. 6, in Richmond. The board resolution was adopted unanimously and calls on the state “to proceed without delay to notify each person who was convicted and for whom evidence has been discovered that this evidence exists … and can be tested for DNA.”
Most of the forensic samples discovered at the Virginia Department of Forensic Science (the Lab) were saved during those years after laboratory examiners had completed conventional blood-typing for use in criminal prosecutions. DNA analysis was not generally available until the late 1980s. Since then, according to the Innocence Project, Americans have witnessed DNA-based exonerations of more than 200 innocent persons. But wrongfully convicted Virginia citizens who requested DNA analysis to prove their innocence were told by the state lab that there was no evidence left to test.
The fallacy of the Lab’s denials was described by a subcommittee of the Virginia Board of Forensic Science, which reported July 29, “In 2001, following the exoneration of Marvin Anderson, the public learned that potentially thousands of archived files in the Department of Forensic Science contained physical evidence that could be subjected to DNA testing.” Mr. Anderson served 15 years in prison for a rape he did not commit. He maintained his innocence throughout those years, and upon being paroled, continued his fight to clear his name. Ultimately, it was DNA evidence from these files that not only exonerated him, but formed the basis of the conviction of the actual rapist in the case. DNA testing is a tool to help ensure that innocent persons are not imprisoned, and that the guilty do not remain free.
In 2005, after four more DNA-based exonerations, then-Governor Mark R. Warner ordered the Lab to perform DNA testing of all retained biological samples found in case files dating from 1973 to 1988. According to a 2005 Warner press release, subtitled “Results of Random Sample Review of Old Serology Files Prompt Full-Scale Review,” “the DNA testing in two cases [out of a sample of 31] led to exclusions of previously convicted people.” That is a rate of more than 6 percent, or more than 6 out of every 100 people, in a random sampling.
Three years after Warner’s order, however, that project has been delayed, and no results have been reported. The Lab has failed to complete or report what would have been the nation’s first statewide, systematic examination of biological material.
In response, the 2008 Virginia General Assembly ordered that the Virginia Board of Forensic Science, the executive branch agency which oversees the Lab, “ensure that all individuals who were convicted due to criminal investigations, for which its case files for the years between 1973 and 1988 were found to contain evidence possibly suitable for DNA testing, are informed that such evidence exists and is available for testing.” (See Budget Item 408.)
In May, the Virginia Board of Forensic Science created the Subcommittee on the Notification of DNA Evidence. This subcommittee prepared and submitted a progress report to the Board on July 29, 2008, detailing its recommendation and preparations for the implementation of a DNA evidence notification plan. The subcommittee also reported that despite clear and unambiguous directives, the Lab has refused to provide the list of names of the people for whom evidence had been found. Because of the Lab’s refusal, the notification of potentially thousands of convicted people has been stalled.
As of today, through the assistance of the Virginia State Bar and other statewide bar associations, approximately 200 lawyers have volunteered to locate, verify, and notify, pro bono, those people who were convicted during this period that biological evidence exists in their case that may be analyzed for DNA.
NACDL further recommended that “The Commonwealth of Virginia, and the Virginia Forensic Science Board, be encouraged to accept the pro bono attorney assistance that has been volunteered as the most reliable and effective means of providing this notice to the proper individuals.” Indeed, the cost of this pro bono legal work will not be borne by Virginia taxpayers. NACDL further urged that these volunteer attorneys be commended for their willingness to participate in this important public service.
NACDL Executive Committee Member Steven D. Benjamin, a lawyer based in Richmond, Virginia, emphasizes that “Notifying people that potential DNA evidence exists that could clear them if they are innocent is a matter of fairness. Attorneys are uniquely qualified to ensure that actual notice is provided to the right person. It would make no sense for a state to refuse the volunteer assistance of attorneys willing to perform this public service at no taxpayer expense.” Mr. Benjamin will be available at the Wednesday meeting of the Virginia Board of Forensic Science.
While the Board of Forensic Science has not posted the meeting agenda on its Web site (http://www.dfs.state.va.us) at this time, the Lab’s obligation to notify people that this evidence exists, and whether an executive branch agency is willing to accept the pro bono assistance of licensed members of the Virginia State Bar are expected to be front and center. Recent profiles of Virginia Governor Tim Kaine have highlighted his years of public service as a Virginia lawyer. The board’s public meeting is being held this Wednesday, Aug. 6, at 10:00 a.m., at the Virginia Department of Forensic Science, 700 N. Fifth St., Classroom 1, Richmond, Va. 23219.
The NACDL Board resolution, “On Notification of the Existence of DNA Evidence in Virginia,” is posted on the association’s Web site at
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.