A review of old blood-typing cases prompted by the recent exoneration of a man who spent 33 years in prison for a murder he did not commit won the blessing of the Virginia Forensic Science Board on Wednesday.
“We’re going to move forward with reviewing the cases that we’ve pulled from those three years, whether or not we get approval from you, because that’s our responsibility,” Linda Jackson, director of the Virginia Department of Forensic Science, told board members, drawing some chuckles.
The pilot effort will focus on 200 sample cases from 1982, 1986 and 1990. The department will report back to the board at its August meeting on whether initial findings indicate a larger effort is needed.
The review stems from the case of Keith Allen Harward — exonerated by the Virginia Supreme Court in record time and released from prison last month — who was convicted of the 1982 murder of a Newport News man and the rape of his wife. He was convicted largely on bite-mark testimony that was proved wrong by DNA testing.
Harward’s lawyers alleged in court papers that simple blood typing conducted by a forensic serologist for the department more than 30 years ago showed that Harward was not the assailant — but the test results were not included in the serologist’s formal report or in his later testimony.
The Innocence Project said the same former serologist, David A. Pomposini, who worked for the department from 1981 to 2012, also did blood typing in the case of Troy Webb, wrongfully convicted of a Virginia Beach rape, imprisoned in 1988 and cleared by DNA in 1996.
Brandon Garrett, a professor at the University of Virginia School of Law who has studied wrongful convictions, said Pomposini also failed to exclude Webb, who should have been excluded, as the perpetrator in that case.
Pomposini could not be reached for comment.
Prior to DNA testing, blood-typing tests were often done on biological evidence to narrow the universe of possible perpetrators. About 80 percent of people leave antigens in secretions such as saliva or sperm that reveal their blood type. The other 20 percent of the population’s blood type cannot be determined from secretions. Evidence showed that Harward was a type-A secretor.
Harward was tried and convicted twice: once in 1983 for capital murder — with the conviction overturned on legal technical grounds — and for first-degree murder in 1986. He was sentenced to life both times.
In a formal certificate of analysis introduced at Harward’s trials, Pomposini said he could not determine a blood type using secretion-typing tests from seminal fluid left on the rape victim. No transcript is available of the 1983 trial, but Pomposini testified in the 1986 trial that his tests indicated that either the assailant was a non-secretor, or a secretor who did not leave enough evidence of blood type to detect.
Pomposini’s formal findings and testimony enabled the prosecutor to argue in his closing to the jury in the 1986 trial that while the blood-typing of the sperm, which had to have come from the rapist, did not include Harward, it did not exclude him, either.
Last year, the department turned over Pomposini’s lab notes in the Harward case to the Innocence Project. The notes show that Pomposini identified antigens in sperm presumed to have been left by the assailant that indicated the assailant was blood type O — powerful evidence of innocence never shown to Harward’s trial lawyers as required, the Innocence Project contends.
According to an affidavit from Gary Harmor, the executive director and chief forensic serologist at the Serological Research Institute in Richmond, Calif., Pomposini’s lab notes show he unequivocally identified antigens consistent with a type-O secretor.
Amy Curtis, counsel for the Department of Forensic Science, told the Forensic Science Board, which oversees the department, on Wednesday that the department routinely conducted blood group typing until the early 1990s, when DNA testing became available. The allegations about the blood typing done by the department in the Harward and Webb cases prompted the review now underway, she told the board.
The review team will be two department forensic scientists. It is also hoped they can find a serologist from outside the department to review randomly selected cases, Curtis said.
The review will look at 200 cases — 100 each from the department’s eastern and northern laboratories — focusing on lab notes, test results and trial testimony to determine if there are any problems. Appeals court opinions will also be examined by a legal research engine for cases that might be reviewed.
If the review team decides there may have been an error, efforts will be made to locate the prosecutor and defense lawyer in the case. The department will test any remaining biological evidence if requested and the prosecution and defense agree, or upon a court order.
Jo Ann Given, a board member and also on the department’s scientific advisory committee, said that most serologists transitioned into DNA testing and most of them have since retired, so it may be difficult to find qualified volunteers. Pomposini also began doing DNA work for the department before he left its eastern lab.
Jackson, the department’s director said: “We are doing this because of allegations in those exoneration cases. ... We’ve looked at those two cases. We want to pull more cases from those years to really get a better understanding of what the practices were back then.”
The goal in such reviews, Jackson said, is to see if something was an isolated incident or whether there was a systemic problem that needs to be addressed. “We really are in the very beginning of this,” she said.
Garrett, with the U.Va. law school, attended Wednesday’s meeting, as did Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project.
“I’m impressed that they are promptly conducting a broad investigation, beyond just Pomposini’s cases but also looking into other serology cases,” Garrett said.
Armbrust said, “It’s great that the department is taking this on in the wake of the problems exposed by the Harward case. It’s exactly the reaction we hope for when these cases reveal systemic problems, and we hope it will motivate other labs and actors in the criminal justice system to do the same.”