By Michael D. Shear and Jamie Stockwell
Washington Post Staff Writers
Thursday, December 15, 2005; A01
RICHMOND, Dec. 14 -- Newly tested DNA from rapes committed more than 20 years ago has exonerated two Virginians who had each spent more than a decade behind bars, reigniting a national debate about post-conviction testing of biological evidence.
Gov. Mark R. Warner (D) announced the test results Wednesday. One of the defendants served 20 years in prison for a rape in Alexandria that the new testing shows he did not commit. The other man was released in 1992 after serving about 11 years for an assault in Norfolk. The governor did not reveal the names of the exonerated men because they had requested privacy. He said he would expedite their pardon requests.
The revelations are the result of modern-day testing Warner ordered more than a year ago on a small number of biological samples that had been collected in thousands of criminal cases. Those samples were taken to establish blood type in the time before DNA testing and the leaps in forensic science that have cleared the two convicts.
Warner said the discovery of two innocent men among the 31 newly examined cases compels an even more sweeping review. He ordered that 660 boxes containing thousands of files from 1973 through 1988 be examined for cases that can be retested using the latest DNA technology. There is no estimate on how long that would take or how much it would cost.
"I believe a look back at these retained case files is the only morally acceptable course, and what truth they can bring only bolsters confidence in our system," Warner said in a statement.
Warner's order stems from the accidental discovery in 2001 of a treasure trove of evidence, including some aging biological samples, stapled to the yellowing case files of a former analyst in Virginia's state-run forensics lab. It is not clear why the analyst, who is dead, had meticulously preserved the evidence in the days before DNA tests existed.
Virginia's review marks one of the first instances in which a governor has ordered a broad examination of DNA cases and places the state at the forefront of a national debate over post-conviction DNA. Virginia has executed more people than any state except Texas since capital punishment was reinstated in 1976. Like other states, its judicial system has been rocked by exonerations from DNA testing in several high-profile cases.
The latest results from Virginia are sure to provide ammunition to those who question the reliability of non-DNA evidence in criminal cases. Both of the recent cases had relied heavily on eyewitness testimony. The samples taken at the time were used to determine blood type, a far-less discriminating test than the DNA methods used today.
Although the Virginia men were not eligible for the death penalty for their convictions, their cases could help those who say greater use of DNA testing will detect the presence of possibly innocent inmates awaiting execution across the country.
"This is a 7 percent innocence rate -- among people who never even asked for testing -- that should give pause to people who think mistakes in our criminal justice system are flukes," said Peter Neufeld, co-director of the New York-based Innocence Project. "This should be a beacon for other governors across the country to implement post-conviction DNA testing."
The new testing conclusively proved that Virginia should not have jailed the Norfolk and Alexandria men and produced a "cold hit" linking someone else to the Alexandria rape. Alexandria Commonwealth's Attorney S. Randolph Sengel said prosecutors would do "everything humanly possible" to bring the real criminal to trial.
The testing did not produce a new suspect in the Norfolk case, and the victim is dead, making a new trial unlikely, officials said. Jack Doyle, the chief prosecutor in Norfolk, said the exonerated inmate told Doyle that he was "grateful his name was going to be cleared and that the truth regarding the offense would finally come out."
Prosecutors in Alexandria and Norfolk have requested that the governor issue complete pardons in both cases.
Sengel declined to identify the Alexandria man, who was released about a year ago, but said Wednesday that "I have met with him, and he is thankful that his innocence has been established."
The biological samples in the two cases were contained among the files of lab analyst Mary Jane Burton, who retired in 1988 and died in 1999. For years, Burton had meticulously preserved pieces of clothing smeared with blood, semen or saliva in her files, which ended up in a storage facility.
Burton's files were rediscovered 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 DNA evidence more than 21 days after sentencing.
In May 2003, Warner pardoned Julius Earl Ruffin, 49, of Virginia Beach, who was cleared by DNA evidence after spending 21 years in prison for rape. Marvin Lamont Anderson of Hanover County and Arthur Lee Whitfield of Norfolk each spent more than a decade in prison for crimes they did not commit and were exonerated by evidence in Burton's files. Those exonerations led to the first round of random testing and Wednesday's announcement.
Legal advocates at organizations such as the Innocence Project have been pushing for greater use of DNA testing in capital cases. But some prosecutors and lawmakers have said increased DNA testing could open the door to a flood of frivolous claims by inmates and undermine the basic system of evidence.
Joshua K. Marquis, vice president of the National District Attorneys Association and an Oregon prosecutor, said high-profile exonerations like those announced Wednesday have led to a "misperception" that DNA is routinely freeing inmates.
"Do we have an epidemic problem of wrongful convictions in this country? No," Marquis said. "The problem of wrongful convictions is episodic, not epidemic."
Still, Marquis said prosecutors nationwide would welcome additional funding for post-conviction testing. But he said evidence from current rape and murder cases should be tested first. He noted that a few years ago San Diego prosecutors launched a program to reexamine DNA evidence in old cases.
"Our allegiance is to the truth," Marquis said.
Virginia's state forensics lab, which has a top reputation nationwide, also made headlines this year when an independent audit raised questions about potentially flawed results in the case of pardoned death row inmate Earl Washington Jr. in 2000.
A later review of 123 current criminal cases at the lab found no pattern of problems, and this review has nothing to do with the reliability of the lab.
Warner has also spent more than three years deciding whether to test the DNA of Roger Keith Coleman, an inmate who was executed in 1992 for the rape and murder of his sister-in-law. Aides to Warner said the governor is likely to make a decision in that case before he leaves office Jan. 14.
Stockwell reported from Alexandria. Staff writer Maria Glod and staff researcher Bobbye Pratt in Washington contributed to this report.