A bill aimed at helping innocent people wrongfully convicted by flawed forensic science advanced in the General Assembly last week with the help of a man who knows all about the problem.
Keith Allen Harward, 62, was convicted of the 1982 rape of a Newport News woman and the murder of her husband largely because two experts testified that Harward’s teeth matched bite marks left by the assailant on the rape victim’s legs.
Though such bite-mark evidence was once seen as a valuable forensic tool, more than two dozen people across the country have now been shown to have either been wrongfully convicted or charged as a result of matching suspects’ teeth with bite marks left in human flesh.
After 33 years in prison, Harward was cleared by DNA and exonerated by the Virginia Supreme Court in 2016. The testing that cleared Harward also implicated the real killer, a career criminal who died a decade earlier in an Ohio prison.
Most cases, however, do not have DNA to come to the rescue. That’s where Senate Bill 1066, introduced by Sen. Bill Stanley, R-Franklin County, would come in.
It would allow people who claim innocence to petition the Virginia Court of Appeals, arguing that developments in forensic science now clear them, or that they were convicted largely by a forensic science technique or testimony that has since been discredited.
Recent scientific studies and DNA exonerations have not only faulted key assumptions underlying bite-mark analyses. They also discredited the frequent overstated testimony of hair examiners and raised questions about forensic disciplines such as bloodstain-pattern analysis.
If the court agrees the petitioner has proved the case by clear and convincing evidence, prosecutors would have the option of retrying the case. A similar bill passed the Senate last year but was tabled, or defeated, in the House.
On Wednesday, Harward urged the Senate Court of Justice Committee to advance the bill. “If it weren’t for DNA, I would still be [an] inmate,” he said. There are other innocent people convicted on what is now known to be bad science but who do not have DNA to prove it, Harward said.
“I think the people of Virginia deserve it. I deserve it. And those people that are sitting here in prisons right now ... that were convicted behind bogus, made up, fabricated science [used] as evidence, it’s just not right. It’s not right,” he said.
Harward said, “I have no hatred for anyone. I believe in my heart of hearts that there’s a reason for everything and that reason is why I’m here today.”
A representative of the office of the executive secretary of the Virginia Supreme Court told the committee Wednesday that the court had some procedural concerns about the bill. Stanley said he would work with the court to address the concerns.
Michael R. Doucette, executive director of the Virginia Association of Commonwealth’s Attorneys, listed a number of concerns his group has with the legislation.
“The very last thing that any prosecutor would ever want to happen is to convict an innocent person,” Doucette said.
But, he said, “Science changes all the time.” The bill could lead to repeated petitions to the court of appeals and the petitions could come decades after convictions, making it difficult for law enforcement to find witnesses and other evidence should they desire a retrial.
Doucette also said there will be a fiscal impact since presumably there would be court-appointed lawyers and expert witnesses involved.
The committee ultimately reported the bill to the Senate Finance Committee, which will assess the potential costs of such legislation.
Earlier Wednesday, Harward sat in the Senate gallery during the floor session, where he was introduced by Stanley and welcomed by Lt. Gov. Justin Fairfax and lawmakers greeted him with warm applause.
“Mr. Harward has spent his time since his release making sure that those who are innocent are not wrongfully convicted,” Stanley said.
“We in Virginia can maybe correct that wrong, so not another innocent man spends 33 years of his life in prison for a crime that he did not commit.”