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Results of post-conviction DNA testing to be released

(by Frank Green, Richmond Times-Dispatch, May 10, 2012, Link)

Reports on 78 convicted people whose DNA was excluded in Virginia's post-conviction testing project — and whose identities have largely been kept secret by the state — will be released under the Freedom of Information Act after July 1.

An amendment in the state budget, passed by the General Assembly last month, directs the release of the reports unless prosecutors deem them critical to a current investigation.

Gail Jaspen, chief deputy director of the Virginia Department of Forensic Science, told the Board of Forensic Science on Wednesday that the amendment appears to have been a response to FOIA requests for the information from the Richmond Times-Dispatch and the Mid-Atlantic Innocence Project.

The forensic science department had previously refused to release the information to The Times-Dispatch and the Innocence Project, citing its discretion under an FOI exemption. But now, in light of the budget amendment, it is preparing to comply with FOIA requests submitted after July 1, Jaspen said.

Any identifying information about victims, their families and their consensual partners will be redacted, she said.

Wednesday's development comes in the wake of a Williamsburg case first reported in The Times-Dispatch in February, in which DNA testing cleared Bennett S. Barbour, 56, of a 1978 rape and implicated another man who will be tried in August.

Authorities had Barbour's test results since June 2010, and they tried unsuccessfully to contact him via mail at his last known addresses.

Barbour learned of the results only when a volunteer lawyer readily reached him by telephone in January at an address just a few miles from where he lived 34 years ago.

To date, the department's project to clear wrongly convicted people by testing crime-scene evidence in hundreds of cases from 1973 to 1988 has led to 78 cases in which the convicted person's DNA was not identified.

Among those 78 cases, two men have been pardoned by governors, two have been exonerated by writs of actual innocence from the Virginia Supreme Court, and Barbour now has a petition for a writ before the justices.

The project also apparently cleared the late Curtis Jasper Moore of a 1975 rape and murder in Emporia and led to the conviction of the real killer. Moore's convictions had been thrown out on technicalities decades earlier.

The fact that someone's DNA is not found in old DNA evidence may be consistent with innocence, but it does not necessarily mean the person is innocent.

But the Barbour case, along with a study by the Urban Institute and the results in the initial DNA sample testing that triggered the project in 2005, suggests there may be more wrongfully convicted people among the 78 who have not yet surfaced.

The test reports, called certificates of analysis, are sent to the prosecutors and law-enforcement agencies where the crimes occurred and the convicted people — when they can be located — are notified and given a copy if they request it.

Under a contract with the National Institute of Justice, which granted the department $4.5 million to finance testing in the project, the Urban Institute studied the Virginia post-conviction test results and traveled to courthouses to research the old case files.

Its preliminary results found a potential wrongful-conviction rate of roughly 6 percent, or 37 out of 638 cases. The final report is expected next month.

Board member Steven D. Benjamin asked that there be a special board meeting before the release of the Urban Institute's study to make appropriate recommendations.

That institute's preliminary rate is similar to the one found in 2005 when then-Gov. Mark R. Warner ordered testing in just 31 sample cases and it cleared two men, both since pardoned, of rapes. Warner, now a U.S. senator, then ordered the full project.

The biological material tested — primarily semen and blood — was discovered in the old case files of forensic serologists with the state forensic lab who performed blood typing in the days before DNA was widely available as a forensic tool.

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    In 2016 DNA tests revealed that blood at the crime scene, which had once been attributed to him, actually belonged to two other men.

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