In recent years the validity of once widely accepted forensic science techniques, such as microscopic hair analysis and bite-mark evidence, has been questioned, largely debunked or even dismissed as “junk science.”
A bill now in the Virginia General Assembly, similar to laws enacted in Texas and California, seeks to give people wrongfully convicted long ago on what has since been found to be faulty forensic science an avenue to challenge their convictions in court.
The case of Keith Allen Harward, exonerated in 2016 of a 1982 rape and murder in Newport News, illustrates the issue, say advocates. Harward was convicted on the testimony of forensic dentists, odonotologists, who said his teeth matched those found in bite marks left by the assailant on the rape victim’s legs.
The experts’ testimony was so persuasive that in upholding Harward’s convictions in 1988, the Virginia Court of Appeals ruled that the dental evidence — now known to be completely erroneous — was strong enough to alone support his convictions.
Dozens of wrongful convictions or arrests in the U.S. have since been found to be due at least in part to faulty, inherently subjective bite mark analysis. Even the American Board of Forensic Odontology no longer sanctions specific biter identifications. In the end, Harward was cleared by DNA and the real assailant was identified.
But if there had been no DNA evidence, he would be out of luck.
“Even though the bite mark testimony that put Keith Harward behind bars for more than 30 years turned out to be completely unreliable, he would probably still be in prison today without DNA testing. In a way, Keith Harward is lucky because DNA is unavailable in 90 percent of criminal cases,” Shawn Armbrust with The Mid-Atlantic Innocence Project said Tuesday.
Armbrust, a proponent of the bill, said, “In Virginia, it’s almost impossible to prove innocence without DNA, even if the wrongful conviction was based on forensic science (that) has been discredited.”
Senate Bill 777, introduced by Sen. Bill Stanley, R-Franklin County, aims to address that. It was passed on a 9-6 vote Monday by the Senate Courts of Justice Committee and will now be considered by the full Senate.
The Virginia Commonwealth’s Attorneys Association opposes the legislation. Speaking for the association at Monday’s committee meeting, Chuck Slemp, commonwealth’s attorney for Wise County/Norton, said, “Number one, this opens Pandora’s box.”
“It allows all sorts of opportunities to ‘game’ the system,” he argued. Two concerns expressed by Slemp — that the standard of proof would be a “preponderance” of the evidence instead of “clear and convincing,” and that it would also apply to people who pleaded guilty — were addressed by amendments Monday.
Sen. Ryan McDougle, R-Hanover, said at Monday’s committee meeting that he sympathized with the intent of the bill but ultimately voted with five other committee members against it.
“I am not comfortable with victims wandering around in the wilderness because somebody’s going to argue that this piece of scientific evidence is no longer valid or has changed,” he said.
McDougle also said he wanted the legislature to determine what was no longer good science to add some certainty to the law. “I thought it was an area we ought to look at but I thought it was one that we ought to step very deliberately into,” he said Tuesday.
The bill would allow for a person convicted of a serious crime to request their convictions be vacated by the Virginia Court of Appeals if there is new scientific forensic evidence — unavailable at the time of their trial — that demonstrates innocence, or that discredits the forensic analysis or testimony used to convict them.
The new evidence must meet the “clear and convincing” standard of proof that they did not commit the crime and would not have been convicted had it been presented at trial.
If a conviction is vacated by the court, the state still has the option of retrying the defendant. People who pleaded guilty would not be eligible.
In Virginia, for the most part, new evidence of innocence must be brought to the courts’ attention within 21 days of the conviction becoming final.
Two exceptions, one involving DNA and the other non-DNA evidence, allow for petitioning the Virginia Supreme Court or Court of Appeals for a writ of actual innocence.
Habeas corpus lawsuits, which are civil challenges to criminal convictions, can be filed only within two years of conviction, and the new evidence must relate to a constitutional violation that could not be raised at trial. Steven D. Benjamin, a Richmond lawyer and special counsel to the committee, told the committee Monday that actual innocence is not grounds for a habeas petition.
According to The Innocence Project, 24 percent of wrongful convictions across the country involve forensic analysis or testimony that was false, inaccurate or overstated. Among other things, flaws have been identified in the microscopic comparison of a suspect’s hair with hair found at the scene of crimes and some arson-related techniques.
Three years ago, the FBI found its hair microscopy experts overstated the probability of hair matches in 95 percent of the cases it reviewed. Any Virginia defendants convicted on such testimony would likely be unable to be cleared in court, says The Innocence Project.
Colin L. Drabert, senior staff attorney for the Virginia State Crime Commission, told the committee Monday that the commission looked at the issue in 2016 and noted that such a bill would address “a gray area in the law” not really covered now by writs of actual innocence or habeas challenges.
Drabert also said the commission did not believe it would generate “a flood” of claims. On the other hand, he said, there was concern that determining when a field of scientific evidence has changed could lead to battles among experts in the appeals court.
And, said Drabert, with years, if not decades, passing since the initial trial, witnesses and other evidence might be lost over time should the commonwealth wish to retry a case with a vacated conviction.
The full Senate is expected to vote on the bill Wednesday or Thursday.