Scary Numbers

Tuesday, March 13th, 2012

There are some astonishing figures coming out of Virginia:

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.

Just kidding.

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.

Digg it |  reddit |  del.icio.us |  Fark

25 Responses to “Scary Numbers”

  1. #1 |  C. S. P. Schofield | 

    Is there nobody in a position of authority on Virginia who can imagine how bad that sounds? My god! They’d come off better if they flat out said “We’re not going to make the results public to protect ourselves from being thrown out of office so hard we bounce.”

  2. #2 |  Mykeru | 

    In one of the Paradise Lost films dissecting the West Memphis Three case, a section dealt with how the state of Arkansas justified it’s continuing denial of Damien Echol’s appeals.

    The short version: The state of Arkansas pretty much stated to the appeals panel that it wanted to maintain confidence in the criminal justice system.

    Which meant, of course, never admitting they were wrong was in the public interest.

    We now live in a country whose theory of “Law and Order” is to justice what the theory of Lysenkoism was to Soviet Agriculture.

    Everything is just fine, comrades. Starve proudly.

  3. #3 |  Mykeru | 

    Damn that rouge apostrophe

  4. #4 |  perlhaqr | 

    It could be terribly embarassing, somehow, to be found innocent. *sigh*

    *headdesk*

  5. #5 |  Yizmo Gizmo | 

    On the bright side, didn’t recent developments of Melendez-Diaz and the Raleigh NC stories (Joe Neff’s stuff on CNN’s Rogue Justice) explode the whole evidence-lab-as-neutral-party charade that helped incarcerate so many innocent people?

  6. #6 |  Rob in CT | 

    And this is a state that actually bothered to check in the first place (IIRC, Warner was a guy who talked sense at least some of the time wrt justice system policy).

    DNA testing seemed like such a silver bullet, didn’t it? It’s a nice idea (and I’d guess that a ~7% error rate beats the pre-DNA-testing situation), but the problem I think is that people assume it’s perfect. Maybe I’m wrong, but I have the depressing impression that most people who have lost faith in our criminal justice system have done so because they think too many crooks go free, not the other way ’round.

  7. #7 |  SJE | 

    This is a problem of Virginia’s own making.

    I have participated in a few probono case in Virginia that involve DNA testing. We offer to do the testing in private labs, at our own expense. There are two barriers
    1) IIRC VA law requires that the testing be done at their own lab unless its a specific test that they do not run.
    (2) Getting access to the samples which requires convincing the prosecutors that we have a decent case, and they routinely oppose it in the name of “closure.”

    The state therefore spends a lot of money denying people access to DNA testing, only to relent and test it themselves. Why not just let people do their own testing at their own expense?

  8. #8 |  Aresen | 

    Why not just let people do their own testing at their own expense?

    1. It might show that police are sloppy or beat a confession out of the wrong guy.
    2. It might reduce the conviction rate meaning that the prosecutors would appear ‘soft on crime’ and reducing their chances of re-election.
    3. It might mean fewer people in prison, thus jeopardizing the profits of prison contractors.

  9. #9 |  EH | 

    The law enforcement community has gone rogue.

  10. #10 |  derfel cadarn | 

    Da law enforcement munity only do wa masa sey. Here on the plantation the LEOs are the modern equivalent of the strawboss or head N-word. It does not matter if the real criminal is punished only that someone is punished. Message sent.

  11. #11 |  Law Prof | 

    If a prosecutors only fig leaf is a preference for closure, it is no wonder why the CJ System can’t get no respect. It, and the people in it, deserve none.

  12. #12 |  CandidIgloo | 

    “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. ”

    My immediate thoughts being: holy shit really? an institution behaving with morals? seriously?

    “Just kidding.”

    .. lololol oooof course. Well played. This is so messed up.

  13. #13 |  Mario | 

    I am reminded of the phrase, “If you’re not outraged, you’re not paying attention.” And with the exception of the landscape portraits and dog shots, I’m reminded of this every day I read this blog.

  14. #14 |  Joe Bar | 

    Quick question. Are the other states doing better?

    Concerned VA resident.

  15. #15 |  StrangeOne | 

    #6 Rob

    That’s my take away from it to. In the same way that people complain about someone busted for a minor crime “getting away with it” because the police didn’t follow proper procedure, far too many times I’ve heard people complain about exoneration’s based on DNA evidence. They either don’t understand the science or simply believe that eye witness testimony shouldn’t be overturned by physical evidence. Remarkable how eyewitnesses never lie about someones guilt while the criminals always lie about their innocence.

    Its the same authoritarians streak behind both lines of reasoning. To some people it doesn’t matter if cops violated your civil or human rights, coerced a confession, or manufactured evidence, you were guilty by accusation and any attempt to get out of it (even so much as hiring a lawyer) is ironclad proof that you are more guilty and deserving of severe punishment.

  16. #16 |  bear | 

    the ‘just kidding’ setup was gold Radley!

  17. #17 |  Mike T | 

    They’re still refusing to release the information to the public.

    Simple solution for this: pass a law which gives the judiciary the right to issue a court order directing any state employee defying the will of the legislature to be fired and barred from state or local employment/contracting for 10 years.

  18. #18 |  Dante | 

    Government misconduct?

    Corruption?

    Coverup?

    All with a splash of racism?

    Ah, Virginia. Some things never change.

  19. #19 |  StrangeOne | 

    Mike T, I guarantee a rule such as that would only be used if someone personally upset a judge. You seem to be misunderstanding the whole “same team” mentality that allows this kind of corruption and negligence to take place in the first place.

  20. #20 |  Ken | 

    And there are 49 other states. Ugh!

  21. #21 |  Joe V | 

    Hey, they execute people in Virginia don’t they? Wow, I better avoid that place!

  22. #22 |  Gordon Clason | 

    It’s hard to believe that Virginia’s motto is “sic semper tyrannis”.

  23. #23 |  Mike T | 

    Its the same authoritarians streak behind both lines of reasoning. To some people it doesn’t matter if cops violated your civil or human rights, coerced a confession, or manufactured evidence, you were guilty by accusation and any attempt to get out of it (even so much as hiring a lawyer) is ironclad proof that you are more guilty and deserving of severe punishment.

    This is because human beings are not rational beings as most libertarians believe, but rather rationalizing beings that naturally order themselves along a pack or tribal hierarchical system where the lower rungs tend to defer to those nominally or substantially socially superior to them. When you realize this, you realize that egalitarianism is actually ruinous to liberty and that noblesse oblige is actually a necessarily precondition and cultural value to ensure liberty for the masses against the elite no matter what form the elite take.

  24. #24 |  SJE | 

    I just confirmed VA policy. So, instead of people paying for their own testing, VA spends a fortune denying people access to DNA testing, and then spends money doing the testing.

  25. #25 |  Articles for Thursday » Scott Lazarowitz's Blog | 

    [...] Radley Balko on the State’s Compulsion to Prosecute and Imprison Innocent People [...]

Leave a Reply