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Tuesday, January 23, 2007

Virginia DNA Review Hobbled

This article appeared in the Washington Post on December 27, 2006:

Virginia DNA Review Hobbled
As Crime Lab Chief Steps Down, Slow Pace Is Criticized

By Candace Rondeaux
Washington Post Staff

A year after Virginia's crime lab launched an unprecedented review of old cases that experts said could free dozens of wrongly convicted people, the project appears to be years from completion, and some are questioning the credentials of the private company selected to do the DNA testing.

Former Virginia governor Mark R. Warner (D) ordered a full review of the cases last December after an analysis of old evidence revealed that two men were not guilty of sexual assault. Warner pardoned the men, who became part of a wave of exonerations that reignited a national debate over post-conviction DNA testing.

At the time, Virginia crime lab director Paul Ferrara predicted that the retesting project would be completed within two years and could free dozens of innocent inmates. But now, just days from retirement, Ferrara has revised his prediction, saying changes at the lab have stalled progress.

"We got nowhere for a while. It has suffered some delays because of staff turnover," Ferrara said. "But we're as interested and as anxious to see this thing through as everyone else. We could see as many as 30 possible exonerations when this is all over with."

The physical evidence came to light in 2001, when an inmate asserted his innocence under a new state law that for the first time granted the right to request testing of newly discovered evidence more than 21 days after sentencing. Lab analyst Mary Jane Burton, who retired in 1988 and died in 1999, and two other lab workers meticulously preserved pieces of clothing smeared with blood, semen or saliva before DNA testing got underway in the early 1990s. A cursory review of a small sample of Burton's files has exonerated five former convicts.

Earlier this year, legal experts speculated that the retesting effort could be slowed when Ferrara, 64, announced in August plans to retire by the end of this year. Gov. Timothy M. Kaine (D) has not selected Ferrara's successor, but the state's Forensic Science Board has interviewed several internal and external candidates, and a decision is expected next month, Virginia officials familiar with the process said.

The evidence review entails a painstaking, multi-step process of separating out cases contained in 660 boxes packed with thousands of files from 1973 through 1988, identifying suspects convicted in each case and determining if physical evidence samples can be tested for DNA.

So far, graduate students hired to help with the project have sifted through more than 329,000 cases, Ferrara said. They will sort and index about 234,000 more files held at regional labs across the state before the bulk of the work is done. They have logged 3,135 cases that have some form of biological evidence retained in the file. No DNA tests have been performed on any of the evidence yet, but Ferrara said he hopes to send the first batch out for testing soon.

"It's going to be slow," Ferrara said. "But I think anyone would rather see us proceed cautiously rather than haphazardly."

The slow pace, however, concerns some. Peter Neufeld, co-director of the New York-based Innocence Project, which has helped exonerate more than 170 inmates, lauded the state for launching the review, saying other states should follow Virginia's example. But Neufeld, who said his organization has several cases pending in Virginia, worries that the review isn't moving quickly enough.

"To allow that to drag as long as it has is unfortunate. It undermines the efficacy of what Governor Warner had intended. It slows down the exoneration of innocent Virginians who are languishing in prison," Neufeld said.

The state selected Bode Technology, a private Fairfax County-based lab, to conduct DNA tests on the samples, a contract valued at an estimated $1.4 million. Bode has won several contracts with the state and has been awarded about $9.3 million overall for outsourced work, according to the Virginia Department of Forensic Science.

But Bode's recent dealings with another state crime lab have been rocky. In August 2005, the company made national headlines after the Illinois State Police canceled a $7.7 million contract with Bode because it failed to identify semen on 22 percent of the rape kit samples it was charged with testing.

Edward Blake of Forensic Science Associates in California, a pioneer of DNA testing, said he is skeptical of Bode's ability to handle the retesting effort in Virginia. A longtime critic of Virginia's crime lab, Blake said the dust-up in Illinois raises serious questions about quality control at Bode.

"I wouldn't trust anything that they did -- not after seeing their work on several cases and the problems in Illinois. With Bode especially since they have a long-term contract with the state of Virginia, they are totally motivated not to see a problem," Blake said.

Calls to Bode General Manager and Vice President Maureen Loftus were not returned.

Ferrara said he's confident Bode is up to the task. "Over the course of the last 20 years, people have found occasions to criticize every private and public lab there is," he said. "That's to be expected. We've worked with Bode for a long time and have long experience with them."

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