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A massive review of old criminal cases in Virginia from the 1970s and 1980s has uncovered at least ten wrongful convictions over the past decade. The ongoing DNA testing project began when the Commonwealth uncovered a trove of old evidence from thousands of cases that had been inadvertently saved by one of the state's forensic analysts. The project could still lead to more exonerations, and, according to one recent study, help shed light on the true rate of wrongful convictions.
Back in the '70s and '80s, before the advent of DNA testing, crime labs around the county would routinely destroy evidence after a conviction. But in Virginia, there was one serologist named Mary Jane Burton, who, contrary to standard practice, liked to keep little bits of evidence — clippings from a stained sheet, or the tip of a Q-tip from a rape kit — and tape them inside her case files.
She wasn't planning ahead for the day when DNA testing would be invented, and new, possibly exculpatory, information could be extracted from these bits of evidence. She simply liked to use them as a prop when testifying in court, to hold up to a judge and jury and say: "This is what I tested."
In 1982, she did just that, in the case of Marvin Anderson.
"During the trial, basically I remember that she had notes in front of her," recalls Anderson. The trial was a blur — three hours that flipped his life upside-down.
He was on trial for a rape that had occurred earlier that year, in rural Hanover County, Va.
It was the summer before his senior year of high school, when his life took this abrupt turn. One Tuesday, when he went in to work at his summer job, and got called into the office.
"No reason why, just come to the office. And when I arrived at the office, there were two officers from Hanover County and Ashland Sheriff Department standing there waiting on me."
Anderson had no criminal record, but the victim identified him by photo (his was the only color photo in the bunch) and then in a lineup.
"From that moment when I was standing in Hanover jail, I knew I was going to prison. Automatic, straight from the bat, I knew I was going. Whether I did the crime or didn't do the crime, I knew I was going to prison."
Anderson was sentenced to 210 years in prison. He was put away at age 18, and would serve fifteen years, before getting out on parole.
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 — they did not retain old evidence, so there was nothing to test.
But the students working on Anderson's case were so convinced he was innocent, they wouldn't take no for an answer.
In 2001, when the director of the Virginia Department of Forensic Science finally pulled Anderson's file out of storage, he found, taped inside, the Q-tips from 1982. Little snippings of evidence Mary Jane Burton had saved.
In 2002, then-Gov. Mark Warner pardoned Anderson, officially exonerating him of the crime that had taken place 20 years earlier.
"What struck me, not just with Mr. Anderson, but with a few other folks, was how little malice they bore, how little bitterness they had," says Warner, now a U.S. Senator.
After two more men were exonerated by old DNA evidence, Warner ordered testing of a random sample of those old cases. Out of 31 cases, the DNA proved two more men to be wrongfully convicted.
This was a big surprise, says Warner.
In 2005, he ordered the state to test every case where evidence had been retained. The Department of Forensic Science sifted through more than half a million case files.
Kelly Walsh, with the Urban Institute's Justice Policy Center, says this "test-them-all" approach created a totally unique set of data.
"What Virginia did is take the traditional method of looking for wrongful convictions, and turn it on its head."
Locating individuals for exoneration
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 or couldn't provide any answers, the report suggests a possible wrongful conviction rate of 8 percent in murder cases, and 15 percent in sexual assault cases.
But Walsh says those numbers come with caveats, and further study is needed. To get a better sense of the true rate, researchers would need to travel to county courthouses across Virginia to glean more information about the old cases.
"Even if reality is half of this, even if reality is closer to 4 percent or 7.5 percent, that's still much, much higher than any previous estimate from other research."
Virginia's DNA testing project has been mired in criticism from the start. Shawn Armbrust with the Mid-Atlantic Innocence Project says in the early years, the state was extremely secretive about the process.
"I think a lot of the issue is that the project was so overwhelming, and it was given to the state crime laboratory itself. They're good at science, but it was hard for them to conceive of and come up with a plan that made sense for the criminal justice system as a whole."
For example, the Commonwealth's clunky process of tracking down convicts who could be exonerated by DNA. In the early years of the project, the state would simply mail a letter to the convicts' last known address.
"When you look at the letter, you think, 'Of course you're not going to get any response to this letter,'" says Jon Sheldon, a criminal defense lawyer in Fairfax.
"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."
Sheldon is one of several attorneys who have volunteered to help the Commonwealth track people down, and refer them to innocence projects and lawyers around the state.
Now, Sheldon is moving on to the next batch of 60-some names — convicted offenders whose files contain DNA evidence, but for whom the state doesn't have a DNA sample to compare it to.
Out of that group, Sheldon says, statistically, one or two people are likely to eventually be proven innocent.
It's one of many subgroups of convicted offenders from the '70s and '80s the state needs to contact — altogether, the number is more than 1,000. The process of finding all of them — required by Virginia law — could take months, or years.
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