Transcripts

Virginia Seeks Evidence To Right Wrongful Convictions

MS. REBECCA SHEIR

00:00:03
We turn now from a legal case in progress in Maryland to criminal trials that happened long ago in Virginia. The books closed on these cases awhile back and they would have stayed that way, but thanks to a forensic scientist's unusual work habits and a convicted felon's quest to clear his name, Virginia is now scouring old DNA evidence for judicial errors. Over the past decade this massive review has uncovered at least 10 wrongful convictions. And according to a recent study of the data, more exonerations could be forthcoming, along with more information on the true rate of wrongful convictions. Jacob Fenston has the story.

MR. JACOB FENSTON

00:00:41
Back in the '70s and '80s, before the advent of DNA testing, forensic science was limited to things like testing blood stains to see if they matched the blood type of a suspect.

MS. KELLY WALSH

00:00:51
Is this Type A blood? Is this Type B?

FENSTON

00:00:53
Kelly Walsh is with the Urban Institute's Justice Policy Center. She says one of the analysts in Virginia whose job it was to do this testing, well, she had a peculiar habit.

WALSH

00:01:02
She would take swabbings or clippings from the original evidence and tape them to her files.

FENSTON

00:01:07
The tip of q-tip from a rape kit or the tiny corner of a stained sheet. Now, this was not standard procedure. And this analyst, her name was Mary Jane Burton, she wasn't thinking ahead, planning for the day when DNA testing would be invented, she just liked to keep these little bits of evidence as a prop to hold up in court and tell the jury...

WALSH

00:01:25
This is what I tested.

FENSTON

00:01:26
When Burton passed away in 1999 she left behind this secret archive of evidence, the DNA of thousands of convicted offenders was hidden away in storage.

MR. MARVIN ANDERSON

00:01:36
During the trial, basically I remember is that she had notes in front of her.

FENSTON

00:01:40
In 1982 Marvin Anderson was on trial for a rape that had occurred earlier that year in rural Hanover County Virginia. It was the summer before senior year of high school, when his life took this abrupt turn. One Tuesday he went into work at his summer job and got called into the office.

ANDERSON

00:01:57
No reason why, just, you know, come to the office. And when I arrived at the office there was two officers from Hanover County and Ashland Sheriff Department standing there waiting on me.

FENSTON

00:02:07
Anderson had no criminal record, but he was identified by photo and then in a line-up.

ANDERSON

00:02:11
From that moment when I was standing in the Hanover jail I knew I was going to prison. Automatic, straight from the bet, I knew I was going, whether I did the crime or didn't do the crime, I knew I was going to prison.

FENSTON

00:02:24
He was put away at age 18 and wouldn't get out of prison for 15 years. When DNA technology came along he wanted his evidence tested, but his lawyer at the Innocence Project in New York kept getting the same answer from the state crime lab.

MS. SHAWN AMBRUST

00:02:37
We don’t save evidence. We send it back to the submitting agency.

FENSTON

00:02:39
Shawn Ambrust with the Mid-Atlantic Innocence Project says the students working on Anderson's case were so convinced he was innocent they wouldn't take no for an answer.

AMBRUST

00:02:48
Can you just look, you know, these students won't leave me alone.

FENSTON

00:02:51
In 2001 the Virginia Department of Forensic Science finally pulled Anderson's file out of storage.

AMBRUST

00:02:56
Oh, wow, there's evidence here.

FENSTON

00:02:58
Taped inside were the q-tips from 1982, little snippings of evidence Mary Jane Burton had saved. In 2002, then Governor Mark Warner pardoned Anderson, officially exonerating him of the crime that took place 20 years earlier.

GOVERNOR MARK WARNER

00:03:12
What struck me, not just with Mr. Anderson, but a few other folks, was that how little malice they bore, how little bitterness they had.

FENSTON

00:03:21
Anderson was the first, but over the next two year, four more men were exonerated by the evidence Mary Jane Burton had saved.

WARNER

00:03:27
Yeah, I was very surprised.

FENSTON

00:03:29
So in 2005 Warner ordered the state to test every case where evidence had been retained. The Department of Forensic Science began sifting through more than half a million case files. Kelly Walsh with the Urban Institute says this test-them-all approach created a totally unique set of data.

WALSH

00:03:46
What Virginia did is take the traditional methods of looking for wrongful convictions and turn it on its head.

FENSTON

00:03:53
In June, the Urban Institute released a report finding the evidence in Virginia supported exoneration in 38 cases. If you do the math and subtract the cases where the DNA was too corrupted to provide any answers, the report suggests a possible wrongful conviction rate of eight percent in murder cases and 15 percent in sexual assault cases. But Walsh says those numbers come with caveats and further study is needed.

WALSH

00:04:18
Even if reality is half of this, even if reality is closer to four percent or 7.5 percent, that's still much, much higher than any previous estimate from other research.

FENSTON

00:04:31
But Virginia's DNA testing project has been mired in criticism throughout. Shawn Ambrust with the Mid-Atlantic Innocence Project says in the early years the state was extremely secretive about the whole project.

AMBRUST

00:04:42
I think a lot of the issue is that the project was so overwhelming. And it was given to the State Crime Laboratory itself. And they're good at science, but it was hard for them to sort of conceive of come up with a plan that made sense for the criminal justice system as a whole.

FENSTON

00:05:00
For example, the Commonwealth's clunky process of tracking down convicts who could possibly be exonerated by DNA. In the beginning the state would simply mail a letter to the convict's last known address.

MR. JON SHELDON

00:05:12
Basically, what it's saying is we're the government, we're here to help, contact us if you need us. And this is being sent to people who have been wrongfully convicted by the government.

FENSTON

00:05:21
Jon Sheldon, a criminal defense lawyer in Fairfax, is one of several attorneys who volunteered to help the Commonwealth track people down. Now Sheldon is moving onto the next batch of 60-something names.

SHELDON

00:05:32
Statistically, from our past experience, there should be a couple of these guys who are innocent.

FENSTON

00:05:39
Altogether, the state has to track down more than 1000 offenders from the '70s and '80s. So far, several hundred have been found. Finding the rest could take months or years. I'm Jacob Fenston.

SHEIR

00:05:57
Time for a quick break, but when we get back, trial and error in the battle against cancer.

DR. RICHARD SCHLEGEL

00:06:04
And so we were able to screen drugs that we thought might be useful. And we're able to identify one that killed the tumor cells and not the normal cells. And they used it in a patient and they got the same results in the patient that we got in the laboratory.

SHEIR

00:06:19
That and more in a minute on "Metro Connection" on WAMU 88.5.
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