Virginia Case Review Revives DNA Debate

Shortly before leaving office, Virginia Gov. Mark Warner ordered post-conviction reviews of thousands of old criminal files after DNA testing in 31 cases revealed that two men had been wrongly convicted decades ago. The move has re-ignited debate about large-scale review of long-settled cases.

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DNA testing earlier this month proved decisively that a man put to death in Virginia more than a decade ago was guilty of raping and murdering his sister-in-law. Roger Keith Coleman had proclaimed his innocence right up to his execution. His case is the latest to show the power of modern DNA analysis. Virginia is using DNA for a sweeping post-conviction review of hundreds of criminal cases, and some say that should be a model for the nation.

NPR's Anthony Brooks reports.

ANTHONY BROOKS reporting:

If you doubt the power of DNA to reveal the truth, consider the story of Marvin Anderson.

Mr. MARVIN ANDERSON (Falsely convicted of rape): I mean there was days that you just wonder, you know, when will this end? You know, how long will it take for someone to listen to me, to believe what I'm saying?

BROOKS: Anderson is a 41-year-old truck driver from Hanover County, Virginia. In the summer of 1982, when he was 18, a black man attacked and raped a young, white woman near Anderson's home. The rapist told his victim that he had a white girlfriend. One of the investigators knew that Marvin Anderson was black and had a white girlfriend.

Mr. ANDERSON: So, that led him to question me about it. A lot of people don't like to talk about racism, you know, a small county, that's not really something that white people would like to see, is a black man dating a white woman.

BROOKS: Police arrested Anderson to see if his victim could identify him, and his nightmare began.

Mr. ANDERSON: They took me down to the police station to get in a lineup. And she brought her down, she picked me out, and from that time, it seemed like they had just focused, you know, their whole investigation just on me and no one else.

BROOKS: In court, the victim identified Anderson. The jury found him guilty, and the judge sentenced him to more than 200 years in prison. Anderson spent 15 years in jail until he was paroled in 1997. Although he was out, he was a registered sex-offender, and he still wanted to clear his name.

By then, Peter Neufeld and his students at the Innocence Project in New York had picked up his case, but they had a problem. They couldn't find the evidence, the remnants of the vaginal swab taken from the victim the day she was raped. Here's Peter Neufeld.

Mr. PETER NEUFELD (Co-founder of the Innocence Project, in New York): All the students made every effort to locate the evidence, unfortunately, without success. They were told there was nothing left. And we would ordinarily, at the Innocence Project, close out that case.

BROOKS: But Neufeld made one more call, to Paul Ferrara, Director of the Virginia State Crime Lab, to see if he could help track down the evidence.

Mr. NEUFELD: And I asked him if he wouldn't mind checking the old laboratory notebooks from 20-years ago, before they had DNA. And a few days later he called me up, extremely excited.

Dr. PAUL FERRARA (Director of the Virginia State Crime Lab): And I think I asked him, are you sitting down? Because I got some news for you, I've got the case file.

BROOKS: That's Paul Ferrara at the state crime lab. Not only had he found Anderson's case file, but he also discovered this, scotch-taped to the paperwork were actual samples of the vaginal swab, evidence that could be subjected to modern DNA analysis 20-years after the crime.

Mr. NEUFELD: It was very fortuitous.

BROOKS: Fortuitous indeed. DNA testing proved Marvin Anderson innocent and identified the real rapist, who was convicted and remains in prison today. Anderson was the first Virginian to be exonerated by DNA.

Mr. ANDERSON: I may be the first, but I'm not the last. There are many more inmates that are still incarcerated that could be innocent. And the only way to find out is, allow these people the opportunity to have these tests done.

BROOKS: The story doesn't end there. The tests were made possible by the careful work of a lab technician named Mary Jane Burton, who retired in 1988 and died in 1999. It was Burton who taped those samples to the files. Paul Ferrara says when he found that first file he had a hunch that Burton's work might help Marvin Anderson, but he didn't know it could also help many others.

Dr. FERRARA: At that point I didn't realize how widespread Mary Jane Burton's practice was, but now, as it turns out, we find out that there are thousands of cases that she did, where she kept these analysis ends.

BROOKS: Thousands?

Dr. FERRARA: Thousands.

BROOKS: All those case files represent a wealth of DNA evidence. After Anderson was cleared, DNA testing from the Burton files cleared two more men convicted of rape. That prompted Virginia governor, Mark Warner, to order tests on a sample of 31 cases, which cleared two more people.

Dr. NEUFELD: Two people who hadn't even requested post-conviction DNA testing.

BROOKS: Again, Peter Neufeld, of the Innocence Project.

Mr. NEUFELD: I mean, that's a seven percent exclusion rate. We were shocked by it.

BROOKS: It shocked Governor Warner, as well. With five DNA exonerations from the Mary Jane Burton files, Warner ordered that all of her cases be re-examined, and if possible, subjected to DNA analysis. So, here in the crime lab, technicians are sifting through hundreds of boxes of criminal files, searching for those that contain the tiny samples of evidence still stained with blood, saliva, or semen that could reveal the truth about crimes committed decades ago.

Dr. FERRARA: You see lots of threads and little cuttings.

UNIDENTIFIED WOMAN: Yes.

BROOKS: Paul Ferrara doesn't know how many more people will be freed, but based on the five so far, he says maybe another couple of dozen.

Dr. FERRARA: Twenty to thirty, that's entirely possible, sure.

BROOKS: Peter Neufeld, of the Innocence Project, says Governor Warner, who left office earlier this month, deserves credit for being the first governor in the nation to order this kind of large-scale post-conviction DNA analysis.

Mr. NEUFELD: You would hope that other governors all over the country would follow Governor Warner's lead and do the same thing.

BROOKS: But Joshua Marquis is not convinced. Marquis is the Vice President of the National District Attorney's Association who says it's a mistake to think that wrongful convictions are common.

Mr. JOSHUA MARQUIS (District Attorney, Astoria, Oregon): Those cases are extraordinarily rare, which is why they're news stories. Some of the criminal defense people would like the American public to believe that we have an epidemic of wrongful convictions in this country. It does happen, but it happens rarely.

BROOKS: Nobody can say for sure how often it happens. What is known is this, since 1989, DNA has uncovered 170 wrongful convictions. But in most cases, there is no DNA evidence, so the actual number is probably higher. Marquis favors post-conviction DNA testing in certain cases, such as when people on death row raise credible doubts about their guilt. But he says it would be wrong to spend limited resources on open-ended post-conviction DNA testing.

Mr. MARQUIS: Any convict has absolutely nothing to lose by demanding a DNA test. We have a limited amount of resources in this country. We've had to fight and scratch just to be able to find enough FBI labs and state labs to do current DNA testing.

BROOKS: But former Governor Warner, who ordered the tests in Virginia, says cost should not be considered.

Former Governor MARK WARNER (Democrat, Virginia): I was candidly surprised when we found two exonerations that came out of 31 tests. I'm a strong supporter of our criminal justice system. Coupled with that strong enforcement of our laws has to be a willingness to find the truth at any cost.

BROOKS: In 2002, the truth allowed Warner to pardon Marvin Anderson, 20 years after he was convicted for a crime he didn't commit.

Anthony Brooks, NPR News.

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