Data from Virginia's post-conviction DNA project support the innocence of 33 persons convicted of sexual assaults from 1973 to 1987 concludes an Urban Institute study.
Findings released today indicate more people remain to be cleared by the Virginia project, a groundbreaking effort aimed at identifying persons wrongfully convicted in the 15 years before DNA testing was widely available.
The institute estimates a wrongful conviction rate in sexual assault cases of between 8 to 15 percent, comparable with the results in sample testing that exonerated two people and prompted then-Gov. Mark R. Warner to order the full Virginia project in 2005.
Jon Gould, director, of the Washington Institute for Public and International Affairs Research at American University, said "This is the most methodologically sound study that's been done and the rate is much higher than has been shown in other studies."
An acknowledged weakness in the institute's report is that the contract for the study expired before researchers could get to courthouses to review the old trial files to better determine the context and significance of the DNA results.
The institute said available information on the cases was limited to data in the old state forensic files, which mainly included basic facts about the crime and the results of the original forensic tests and the results of more recent DNA analysis.
Rockne Harmon, a former California district attorney and DNA expert, said that is a problem. He said the institute should have at least done a representative sampling of the old court files.
Among other things, rape victims are frequently asked if they had consensual sex within 72 hours of an assault. "Without this (kind of) information little can be said about the materiality of finding a matching or non-matching DNA profile," said Harmon.
However, John Roman, the lead researcher in the project, said that even if all the court records were reviewed he would not expect many of the 33 cases to drop out.
Weaknesses or not, Steven D. Benjamin, a member of the Virginia Board of Forensic Science and president elect of the National Association of Criminal Defense Lawyers, said the study should set off alarm bells.
"Each defendant in the cases that support innocence should be interviewed immediately, and the case investigated thoroughly," he said. "If any one of these 33 is innocent, each day . . . is an injustice," said Benjamin.
The Urban Institute cannot reveal any of the identities, though many of those cases may be made public after July 1 due to recent state legislation ordering the department to release test results in cases where the convicted person's DNA was not found.
Nearly 800 cases involving 1,100 convicted persons have been tested in the Virginia project since 2005 but only three more people have been exonerated in addition to the two cleared in sample testing seven years ago.
The Urban Institute says the Virginia data – DNA results in a random sample of suspects convicted of rape, murder and other serious crimes -- is better suited for such studies on wrongful conviction rates than data in earlier studies.
"This 'test-them-all' approach to post-conviction DNA testing has never been replicated by any other state," says the report.
The Virginia Department of Forensic Science said last month that testing failed to identify, or excluded, the DNA of 78 convicted defendants more than a dozen of them now dead and others not yet located.
Absence of DNA in the 78 cases can be consistent with innocence but may prove nothing. Much depends on context. Failure to find a suspect's DNA in a cigarette butt at the scene of a rape may be irrelevant -- but failure their DNA in semen can be telling.
Though unable to review old courthouse files, the institute said the Virginia data, "likely provide the best opportunity to date to understand the rate of wrongful conviction."
"Whether the true rate of potential wrongful conviction is 8 percent or 15 percent . . . is not as important as the finding that these results require a strong and coordinated policy response," concludes the institute report.
Brandon Garrett, a University of Virginia School of Law professor, also thinks the study needs a strong response from policy makers. "I think this report isn't the final report, it's just the beginning," he said.
"There's still a lot of (work) to do and a lot of questions that need to be answered," said Garrett.
The Virginia Department of Forensic Science does not determine the legal significance of test results and forwarded them to local authorities where the crimes took place.
But aside from the five exonerations and several other cases, little is known of the other exclusion cases.
Critics of the Virginia effort such as Benjamin and Peter Neufeld, a cofounder of the Innocence Project, want to allow defense lawyers access to project results along with police and prosecutors.
They also urge that cases of possible wrongful convictions be pursued even where the convicted person is dead to clear their name, to make sure the guilty person is off the street and to learn what led to the wrongful conviction to help prevent future ones.
The Virginia Department of Forensic Science and the Board of Forensic Science, which considers the DNA test results criminal records, have long resisted efforts to reveal them to anyone other than law enforcement.
The convicted people were not going to be told about the testing until 2008 when the General Assembly used a budget amendment and directed they be notified.
This year the General Assembly, concerned that potential exonerations were not being adequately investigated, directed the department, effective July 1, to release the test results in cases where testing failed to find the convicted person's DNA.
The legislators' concern stemmed from the case of Bennett S. Barbour, of Charles City County, who was wrongly convicted of a 1978 rape in Williamsburg and was one of the people excluded by testing who could not be initially found by mail.
Testing in June 2010 cleared him and implicated a convicted rapist who will be tried for the crime in August. Barbour did not learn about the DNA testing until 18 months later when a volunteer lawyer tracked him down via telephone.
Garrett, of the University of Virginia School of Law, who urges more work be done, said, "Time will tell how many more of these cases, like Barbour's, will result in full exonerations. Hopefully that process is moving more smoothly now."
Here is how the study was conducted:
The Justice Policy Center of the Urban Institute studied the test results in 634 of the Virginia cases involving 715 convicted people from 94 Virginia localities under the terms of a $4.5 million federal grant that paid for most, but not all, of the state testing.
Of the 634 cases, 422 were for sexual assault. In 227 of those cases, testing results were sufficient to either implicate or fail to find the convicted person’s DNA. And the institute believes that the testing in 33 of the exclusion cases supports innocence.
Comparing the 33 with all 422 sexual assault convictions yields an 8 percent wrongful conviction rate while comparing it to just the 227 cases where testing either implicated the convicted person or failed to find his or her DNA yields a 15 percent rate.
In 2005 the initial state sample testing of 31 cases resulted in 16 cases where the convicted person’s DNA was either identified or excluded and exonerated two men of rapes.
Comparing the two exonerations to the 31 cases yields a wrongful conviction rate of 6 to 7 percent while comparing the exonerations to the 16 cases with determinative results yields a rate of 12 to 13 percent.
According to the Urban Institute, the Justice Policy Center conducts nonpartisan research and evaluation designed to improve justice and public safety policies and practices at the national, state and local level.