In September 2004, Mark Warner, then Virginia’s governor, ordered a random audit of 31 old criminal cases after a vast trove of biological evidence was discovered lying around in old case files saved by state forensic serologists. The testing of those 31 samples led to the exonerations of two convicted rapists. Warner, embarrassed by the revelations, then ordered in late 2005 that every sample obtained between 1973 and 1988 be rechecked. It amounted to thousands of files . . .
At the time Virginia’s audit began, Barry Scheck, co-founder of the Innocence Project, which has used DNA testing to exonerate hundreds of prisoners across the country, noted in astonishment that “a random sample of convicted felons and we’re getting a 7 percent exoneration rate” in Virginia. But it appears that a 7 percent exoneration rate may be grossly understating the problem. UVA’s Garrett suspects that the error rate may actually be as high as 17 percent. As he discovered in his own research, Barbour’s conviction, based on the testimony of a single eyewitness, reflects the reality that of the first 250 people exonerated by DNA testing, a whopping 76 percent were misidentified by eyewitnesses.
Whatever the percentage of error on the part of Virginia’s criminal justice system, one thing is certain: Only a handful of the falsely convicted have received the exonerations they deserve.
Due to a widespread sense of shame and an eagerness to take responsibility for its mistakes, the state of Virginia is now opening up its DNA testing process, inviting outside labs to help with the testing project, as well as to independently verify the results from the state lab. The state is also inviting journalists and academics to scrutinize the project to look for errors and oversights.
It was a project intended to take 18 months at a cost of $1.4 million dollars. Now in its seventh year, the cost of the project hovers at $5 million. Nobody has any idea exactly how the Virginia Department of Forensics has conducted its work. Indeed, no one knows much about the specifics of the crime lab’s work at all . . .
University of Virginia law school professor Brandon Garrett (who has contributed to Slate) is an expert on wrongful convictions and DNA exoneration. His landmark study, Convicting the Innocent, scrutinized the cases of the first 250 people to be exonerated nation-wide by DNA testing. To hear him tell it, Virginia’s statewide audit is a mystery wrapped in obfuscation. “This DNA testing program began two Governors ago,” he says, “but its operation has remained shrouded in secrecy. We do not know how the authorities chose to test the cases that they have tested. We do not know how long the authorities have known about the many dozens of cases where DNA has excluded the individuals. We do not know what local prosecutors plan to do about the cases where DNA may prove innocence.”
The state’s actions only get more sordid from there. State officials initially refused to make any attempt at all to let convicts know that their DNA was being tested. When compelled to do so by the state legislature, they’ve complied only in the most bare-bones sense of the word. They’re still refusing to release the information to the public. Instead, they’ve sent letters loaded with legalese to the last known addresses of the convicted. Some of these cases are decades old. They finally relented and have allowed pro bono attorneys to track down the convicts, but only under the stipulation that the attorney who does the tracking agree to not represent the convict in any subsequent legal action.
If you want to squeeze some dark humor out of this tragedy, look to the absurd justifications state officials are giving for their obstinacy. For example, here’s one official’s explanation why they initially balked at letting pro bono attorneys track down the exonerated:
“If you send a young, new attorney to a bad neighborhood, bad things could happen.”
And here’s why the state made no effort to send DNA results from the exonerated who have since died to their next of kin:
“That information is private and personal, and maybe that individual doesn’t want his family members to have a copy of the report. We have to protect the sensitivity and privacy of those individuals.”
So yes, state of Virginia may wrongly convict you, then send you to prison for decades for a crime you didn’t commit. But rest assured. Should DNA testing exonerate you after your death, the state will honor your privacy and “sensitivity” by refusing to notify your family that you were innocent all along.