I reported here earlier about the project in Virginia to test DNA in old cases where an inmate is in prison but the DNA from their cases had not been tested. The testing resulted in DNA exclusions for up to 78 inmates, but many of these inmates were not informed. The article below (referred to yesterday by Carole) tells an interesting tale of the state’s hesitancy to provide disclosure in these cases, and how the legislature used a creative budget amendment process to try to move along the process:
From the Richmond Times-Dispatch:
A Virginia budget amendment lifting some of the secrecy surrounding the state’s post-conviction DNA project was prompted by the tale of a cancer victim who was recently cleared of a 34-year-old rape.
Articles in the Richmond Times-Dispatch this year outlined the case of Bennett S. Barbour, convicted of a 1978 assault in Williamsburg. Testing failed to find his DNA in old evidence and instead implicated a convicted rapist in the crime.
Police and prosecutors had the test results since June 2010, but Barbour, 56, who lives in James City County near Williamsburg, did not find out until this January, when a volunteer lawyer contacted him. That delay prompted concern among some legislators.
“I asked for the budget amendment totally based on (The Times-Dispatch’s) article about Barbour and what happened,” said state Sen. Janet Howell, D-Fairfax, vice chairman of the Virginia State Crime Commission.
State Sen. Thomas K. Norment Jr., R-James City, also read about Barbour’s case. “If there was any reasonable way to either eliminate or at least minimize miscarriages of justice, then I was prepared to be an advocate for it,” he said.
“I appreciate the balancing and the concerns of forensic scientists and prosecutors about certain identifying information,” he said. But Norment, who helped craft the amendment, said the scales tipped heavily toward more disclosure.
It isn’t the first time legislators, concerned with the now-7-year-old effort to clear people wrongly convicted decades ago with DNA testing, have used a budget amendment to order changes in the Department of Forensic Science post-conviction project.
The project began in 2005 after DNA testing of old biological evidence in 31 sample cases cleared two men of rapes. The evidence, primarily blood and semen, was taped inside the case files of forensic serologists from 1973 to 1988.
Since then, testing in hundreds of cases resulted in 78 in which the convicted person’s DNA was not found. In the cases of Barbour and at least four others whose DNA was excluded, the results demonstrated innocence.
* * * * *Initially, the state Board of Forensic Science, which oversees the department, said only prosecutors and police were to learn the test results and that it would be up to authorities to decide the significance of the testing and to take any action.
Critics complained that the convicted people — who potentially had the most at stake — also should be notified. Members of the legislature agreed.
In 2008, the General Assembly used a budget amendment ordering the department to notify convicted people that biological evidence had been found in their old forensic case files that would be tested and that they could request the results.
In 2009, after members of the Virginia State Crime Commission weighed in, the assembly passed emergency legislation ordering the agency to allow volunteer lawyers to assist in finding and notifying the convicted people.
Although the Barbour case — in which there was a strong lead to the real rapist — illustrated concerns that authorities may not be investigating some of the 78 cases aggressively, the Department of Forensic Science kept the identities secret.
In response to a Freedom of Information Act request from The Times-Dispatch in January, the Department of Forensic Science — citing a FOIA exemption — refused to release records identifying the excluded offenders, more than a dozen of them deceased.
Howell said the assembly had been in session for a month when the Barbour coverage appeared in the newspaper and it was late in the budget process. She decided to pursue a budget amendment as a way to get more information from the department.
Governors and legislators often have woven through the budget language that targets agencies and programs. The practice is occasionally criticized but is embraced by politicians as an effective way to achieve a policy objective because the budget — as a state law — trumps all others.
The amendment initially sought by Howell was more sweeping than the one finally passed and prompted concerns from prosecutors and others that it could jeopardize ongoing investigations and cause other problems.
Norment, a lawyer and chairman of the Senate courts committee and also a member of the crime commission, recalled that he got involved after Howell’s proposal “ended up getting wrapped around the axle a little.”
“I tried to craft some language that would expand the responsibility of the Department of Forensic Science to make more information available but not to basically do harm to any ongoing criminal investigation,” he said.
He said he and other legislators heard from the Department of Forensic Science, the crime commission staff, prosecutors, FOIA experts, defense lawyers and others.
In the end, the amendment requires the department to turn over the test results in the 78 exclusion cases, unless a prosecutor deems them critical to an ongoing investigation. Any information about victims or their family will be redacted.
That the amendment got in the pending budget, Howell said, “is, I think, a reflection of an ongoing frustration with the process and the lack of transparency and the lack of effort made by the Department of Forensic Science.”
Gail Jaspen, chief deputy director, responded that since 2008, the department has made quarterly reports on the program’s progress at meetings of the Board of Forensic Science, and summaries of the program were in annual reports to the assembly.
She said that while potentially sensitive information in investigative records has been protected from disclosure, each DNA report has been given to law enforcement and to the convicted people who have been found and who request the records.
Barbour, joined by the Attorney General’s Office, has asked the Virginia Supreme Court for a writ of actual innocence.
Wrongful Convictions Blog 