innocence blog

A Web log for the Innocence Institute of Point Park University

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."

Monday, January 22, 2007

This article appeared in the New York Times on January 18, 2007:

A 12th Dallas Convict Is Exonerated by DNA

By RALPH BLUMENTHAL

HOUSTON, Jan. 17 — A 50-year-old Dallas man whose conviction of raping a boy in 1982 cost him nearly half his life in prison and on parole won a court ruling Wednesday declaring him innocent. He said he was not angry, “because the Lord has given me so much.”

The parolee, James Waller, was exonerated by DNA testing, the 12th person since 2001 whose conviction in Dallas County has been overturned long after the fact as a result of genetic evidence, lawyers said.

“Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span,” said Barry C. Scheck, co-founder of the Innocence Project, the legal clinic that championed Mr. Waller’s case. In fact, Mr. Scheck said, those 12 such instances are more than have occurred anywhere else except the entire states of New York and Illinois since the nation’s first DNA exoneration, in 1989.

In the aftermath of the new evidence, prosecutors had joined defense lawyers in calling for the clearing of Mr. Waller, who spent more than 10 years behind bars before he was paroled in 1993.

“I’m sorry that happened to you, man,” Craig Watkins, the county’s new district attorney, told Mr. Waller on Wednesday, shaking his hand in the Dallas courtroom where a judge later approved a motion to vacate the conviction. That motion now goes to the Texas Court of Criminal Appeals for formal approval.

Mr. Waller broke down once at the hearing, when describing how his car crashed on the way to a court proceeding in 2001, an accident that killed his pregnant wife, Doris, and the unborn daughter they had wanted to call Grace. “I said, ‘Well, I don’t want to live no more,’ ” he recalled, mopping his face with a tissue.

One of his lawyers, Nina Morrison, patted him on the back. “He lost 10 years 11 months and 3 days of his liberty literally picking cotton in the fields for no pay,” she told the court. “His perseverance is an inspiration to all of us.”

The judge, John C. Creuzot of Criminal District Court, sought to console Mr. Waller, who stood before him in a tan suit, a white shirt and a tie. “A lot of times we are tested in life, and you certainly had a terrible test,” Judge Creuzot said. “On behalf of any and all public officials at that time, I want to apologize.”

Earlier in the day, the Innocence Project provided synopses of the county’s dozen DNA exonerations. “Nobody knows the reason why we have 12-and-counting here in Dallas, but we’ll find out the answers,” Mr. Scheck said. One Texas lawmaker, State Senator Rodney Ellis, a Houston Democrat, has introduced a bill that would establish a Texas Innocence Commission to study exonerations for ways of eliminating wrongful convictions.

The case against Mr. Waller was largely based on the 12-year-old victim’s identification of him, court papers show.

Around 6 a.m. on Nov. 2, 1982, the boy, identified only as Jay S., was alone in his family’s dark apartment with his 7-year-old brother when he was sodomized by an intruder he described as a black man about 5-foot-8 and weighing 150 pounds, his lower face concealed by a red bandana.

By the boy’s account, he heard the voice of his attacker that night at a 7-Eleven near his home, and turned to see Mr. Waller, who was then 25 and lived with his family in the same apartment complex as the victim, the only black family there. Although there were discrepancies in the boy’s account — Mr. Waller is almost 6-foot-4 and was heavy — and although Mr. Waller presented witnesses saying he was home at the time, he was convicted in 46 minutes and sentenced to 30 years. He won parole in 1993 but had to register as a sex offender.

He had begun petitioning for retesting of the state’s rape evidence in 1989, and redoubled his efforts in 2001 after Texas passed a law granting post-conviction access to DNA testing. Results of hair testing appeared to rule out Mr. Waller as the attacker, but the Court of Criminal Appeals found it inconclusive.

Still, “the Lord kept pushing me because I wanted my name back,” Mr. Waller said Wednesday.
Last month the Innocence Project, through use of a previously unavailable technology called Y-STR DNA, found that genetic material recovered from the victim conclusively excluded Mr. Waller and the victim and could have come only from someone else.

Mr. Waller has started a lawn care business, but remains on parole pending the formal action of the appeals court and must shy from all contact with children. “It has been a long struggle for me,” he said. “They look at you like you’re an animal.”

Mr. Watkins, Dallas County’s first African-American district attorney, took office two weeks ago in a Democratic sweep. “I can say I’m sorry all day,” he told Mr. Waller in court. “I know that doesn’t mean much to you, but I can guarantee to you in the future when I’m the district attorney we will insist that we will not send anyone who’s innocent to prison.”

“The sad thing,” he said, “is the person who actually did this crime is still out there on the streets.”

Gretel C. Kovach contributed reporting from Dallas.