Last Wednesday, James Moses Glass, 56, was indicted for the 1978 rape of a William & Mary coed. For more than 25 years this crime wrongfully defined Bennett Barbour as a rapist. He served 4-1/2 years in prison, which cost him his marriage, marred his relationship with his daughter, and labeled him a violent felon. Two years ago, as a result of Virginia Governor Mark Warner’s 2005 order to retest all DNA samples obtained from 1973 to 1988, Barbour was excluded as the rapist. The DNA instead linked James Glass to the crime. Glass was in the database due to a 1979 rape conviction in New York. But, if it weren’t for a private attorney’s pro bono efforts, Barbour might never have known that the innocence he has always claimed finally had been proven.
According to a Richmond Times-Dispatch article here 76 felons have been excluded as the source of the DNA evidence in their cases, but as of January of this year, 29 of those still assumed living had not been notified of these results. It seems that Virginia hasn’t been very successful in notifying those who would benefit most from the results (or apparently of notifying the crime victims or of reinvestigating the cases where conviction error is suspected). Private attorney Jonathan Sheldon has taken it upon himself to find those excluded from the crimes through this testing. He found Barbour 18 months after the test results excluded him. Barbour would have certainly enjoyed knowing this news sooner, but without Sheldon, he would likely still be labeled a rapist.
The Richmond Times-Dispatch article states, “Unlike in Barbour’s case, the DNA results in the 75 other exclusion cases might have no bearing on guilt or innocence—but so much of Virginia’s post-conviciton DNA project is confidential, few outside law enforcement know the significance of those test results.”
Indeed, it has been difficult to quantify the conviction errors revealed in this project. According to the article, “The Urban Institute, which is reviewing the confidential project results from the Virginia Department of Forensic Science, said recently that it has tentatively found 37 potential wrongful convictions among the cases.”
The Department of Forensic Science has refused to release the results, including 13 cases in which the convicted persons have since died. The Department has said the results are exempt from disclosure requirements.
The testing has been a much larger project than even Governor Warner could have anticipated, and what to do with the results that indicate a potential conviction error has been problematic. At first, the information was to go only to law enforcement to determine if further action was needed. Given our adversarial system and the human tendency to be reluctant to acknowledge error, some would say this process could compromise the evaluation results.
In 2008 Innocence Projects convinced the Virginia General Assembly to order the Forensic Science Board to notify more than 1000 persons that DNA in their case was available for testing. Today, the Department of Forensic Science notifies the local prosecutor of every case in which the DNA testing excludes the person convicted. The prosecutor then tries to notify this person or his family. In a recent tally, of 76 excluded by the testing, the families of the 13 deceased and 29 who are still missing had not been contacted.
The Barbour case has focused the nation’s attention on the can of worms opened by Governor Warner in 2005. While the state can point to some effort made to contact those convicted of crimes in which biological evidence survives for testing and while the state has notified prosecutors in the jurisdiction of those crimes in which the convicted person has been excluded by the testing, bottom line, 42 of the 76 convicts—or families of convicts when deceased—excluded of their crime scene evidence, had not been contacted as of earlier this year.
Many must assume that Virginia has not made clarifying the outcomes of this long and costly project enough of a priority. To signify Virginia’s commitment to truth in justice, the state needs to establish an effective method of locating these individuals or their families. It needs to communicate this new test result information to the victims of crimes when a wrongful conviction is confirmed. It needs to reinvestigate those cases in which wrongful conviction is apparent. If the state claims it cannot find those convicted persons whose DNA has now been excluded, it might turn to its collections department—the agency or state-employed service organizations that locate those who owe the state back taxes or other debts. They are very good at what they do and can probably find the missing persons in short order.