Defense attorneys say state law requiring preservation of crime evidence is not being followed

Date published: 1/19/2006

By PAMELA GOULD

Mary Jane Burton has been hailed as a hero for her habit of preserving bits of forensic evidence that have now been used to exonerate five men wrongly convicted of rape.

The former Virginia crime-lab examiner's prescience may lead to further exonerations as a result of advances in forensic science that, years after her work--and death--enable precise determinations of who left biological evidence at crime scenes.

But Robert Lee, director of the Virginia Capital Representation Resource Center in Charlottesville, is interested in seeing the state's crime lab and its circuit courts take a more methodical approach to preserving such evidence--one enshrined in law.

In 2001, the Virginia General Assembly passed legislation requiring the Division of Forensic Science to keep human biological evidence in every death-penalty case and in other felony cases as requested by the defendant.

The statute calls for the DFS--the state's crime lab--to "store, preserve, and retain" the evidence for death-row inmates until an execution is carried out. In other felonies, if the person convicted requests it, the evidence is to be preserved for up to 15 years, and longer if the court deems it necessary.

Preserving evidence can be critical to appeals, especially when defendants seek to prove their innocence. Advances in DNA procedures have resulted in getting innocent men off death row and confirming the guilt of others. It also was responsible for clearing the men in five separate cases using evidence found in Burton's files.

Last summer, in an effort to ensure the evidence-preservation law was being followed, attorneys with the capital-case resource center began filing motions in circuit courts around the state.

Lee classified the responses from court officials as ranging from "lukewarm" to "annoyance." In between were those who weren't sure how to get it done.

That question is now playing out in two Prince William County death-penalty cases. In one, defense attorneys are so troubled that they're seeking to have the conviction overturned.

In the other, Manassas lawyer Daniel Morissette is seeking compliance with state statute 19.2-270.4:1 in the case of convicted sniper mastermind John Allen Muhammad.

Last month, at a hearing before Circuit Judge LeRoy F. Millette Jr., Assistant Commonwealth's Attorney Rick Conway said the evidence had been sent to Montgomery County, Md. On Friday, a second hearing is scheduled to further explore the matter.

Date published: 1/19/2006