The Virginia Department of Forensic Science post-conviction DNA testing project has taken the next step in its massive review of state forensic cases from before DNA testing was available—notifying people who have been convicted of crimes for comparison DNA samples. In 63 cases, the DNA evidence from the crime scene exists for testing, but without the comparison sample, there is no way of knowing if the individual was wrongfully convicted.
Assisting with the effort is volunteer attorney Jon Sheldon who has had some success finding people when the state couldn’t. Sheldon previously helped the project by tracking down more than 20 people whose DNA results were excluded in post-conviction testing. Among the people authorities were unable to locate was Bennett Barbour, convicted of a rape in 1978 and exonerated earlier this year.
Sheldon says it’s a hard decision for people to make without a lawyer and that they need to understand their DNA sample can only help them if they are innocent of the crime for which they are convicted. On the other hand, if they’re not innocent, or if they have committed other unsolved crimes, it could be detrimental.
Sheldon says that under circumstances where the door is potentially open for using the DNA sample in other cases, he would not advise any of the 63 to give a DNA sample unless they clearly understood the implications and risk.
“This was one of my concerns,” Sheldon said. “It’s going to be a little bit sticky.”
To advise someone to give a sample, he said, “I would need a client behaving like Bennett Barbour — jumping up and down saying, ‘This is the call I’ve waited for all my life. I am innocent and … I’ve never been involved in any other criminal activity, ever.’ ”
Kristen J. Howard, executive director of the Virginia State Crime Commission, is coordinating the offender notification work in the project and said it has yet to be worked out what Sheldon and any other volunteer lawyers will say to the 63 people.
That will be worked out with the Mid-Atlantic Innocence Project, Howard said. “We may have to exactly define what legal advice will be provided because this is very different from what we previously did,” she said.