DNA

Expert Testimony Convinces Court that Virginia Defendant was Wrongly Convicted

Written on Tuesday, June 18th, 2019 by T.C. Kelly
Filed under: ExpertWitness

A woman was raped in Reston, Virginia in 1975 by a man who entered her apartment through an unlocked balcony door. She did not know her attacker, but the police were able to prepare a composite sketch from the description she provided. Months later, the police showed the sketch to a person who said it resembled her brother’s friend, Winston Scott. The police then placed Scott’s photograph in an array with other photographs and showed it to the victim. She picked out Scott’s picture.

The woman was understandably shocked and frightened during the assault. She acknowledged that the light was dim and that she did not get a good look at the rapist. She nevertheless identified Scott as her attacker during the trial. That is unsurprising, since witnesses who are shown a suspect’s photograph tend to base in-court identifications on their memory of the photograph. No other evidence linked Scott to the apartment where the victim was raped.

Alibi witnesses confirmed that Scott was sleeping in a house that was about 8 or 9 miles from the crime scene on the night of the attack. Scott did not have a car.

Prosecution’s Expert Evidence

The prosecution relied on the testimony of Mary Jane Burton, the head of forensic serology at Virginia’s Bureau of Forensic Science (BFS). Burton testified that she found semen in the jeans that the victim put on after her attack. She sent samples of the semen to the crime lab. The lab results indicated that the semen contained secretions from a person with blood type A. Scott had blood type O.

Apparently unhappy that forensic evidence cleared their only suspect, Burton submitted a different sample from the jeans to the crime lab. Miraculously, the second test determined that the semen was secreted from someone who was blood type O.

Burton tried to explain the discrepancy by claiming that “bacterial growth” caused by storing the jeans in a plastic bag may have produced a false blood type. However, Burton failed to test the original semen sample for bacteria and thus had no foundation for her opinion. A prosecution-friendly judge nevertheless permitted her to give her speculative opinion to the jury.

Despite the clear presence of reasonable doubt, a jury found Scott guilty. He was released on parole in 1981. He has spent his life living under the shadow of a rape conviction.

DNA Testing

After Virginia nearly executed two innocent people based on inaccurate crime lab testimony, the state crime lab was audited. The audit revealed that analysts routinely produced questionable results, often in response to pressure from government agencies that wanted the results to match their theory of guilt. Pressure from prosecutors or law enforcement agencies may explain why the crime lab initially reported a test result that was inconsistent with Scott’s guilt but later changed its finding.

Gov. Scott Warner ordered DNA tests of all evidence samples collected and retained by the crime lab between 1973 and 1988, before DNA testing was available. The testing of sperm samples in Scott’s case was completed in 2010.

The analyst concluded only that DNA collected from the sperm samples did not match anyone in the state’s DNA database. The analyst did not try to exclude Scott because of a policy that required DNA to be collected from four loci to make an identification. That policy did not apply to the use of DNA to exclude a contributor, but the analyst used it as an excuse to avoid excluding Scott as a source of the DNA in the victim’s jeans.

In 2017, DNA was collected from Scott. The crime lab’s comparison of Scott’s DNA to DNA taken from the sperm samples eliminated Scott as a possible source of the sperm. The victim’s boyfriend was also eliminated a contributor of the sperm sample, suggesting that the sperm came from the rapist.

Actual Innocence

The victim recently admitted that she was never sure of her identification, but assumed the police would not show her photographs unless the guilty person was included among them. She thought that the rapist was shown in one of the six pictures, so she selected the closest match. Mistaken identifications under similar circumstances contribute to about 70% of wrongful convictions.

Scott filed a petition seeking a determination that he was actually innocent of his crime of conviction. Scott’s parole had ended and, in many states, he would not have been entitled to relief because state law usually limits the availability of legal relief to individuals whose freedom is restrained in some way, including the restraints imposed by conditions of parole.

Virginia allows people to file a petition for a writ of actual innocence as a way of clearing their name. Since the effects of a criminal conviction never go away, the petition is a valuable tool that all states should adopt as a remedy for injustice.

Prosecutors Resist Justice

Prosecutors are often unwilling to admit their errors, although decades after a wrongful conviction, they are sometimes willing to admit that their predecessors made a mistake. It is remarkable that the prosecutors currently handling Scott’s case told the court that the new DNA evidence did not prove Scott’s innocence. They claimed that the stain might have come from someone other than the rapist.

The victim’s boyfriend was excluded as the source of the semen. The victim denied having consensual sex with anyone except her boyfriend. It is therefore difficult to understand who else might have contributed the semen that was inside the victim’s jeans, if not the rapist.

To overcome that obstacle in its shameful effort to keep a wrongful conviction intact, prosecutors argued that the victim did her laundry in washing machines used by other tenants of her apartment building, and theorized that semen might somehow have transferred from the washing machine to the inside of her jeans. Not surprisingly, prosecutors did not offer that theory during Scott’s trial, since it would have undermined an already shaky test result.

Defense Expert Testimony

Scott countered with expert evidence from Nora Rudin, a forensic DNA consultant. Rubin explained that it is possible for a DNA sample to survive laundering, but that the large intact stain found in the victim’s jeans was inconsistent with a semen sample in clothing that had been laundered. She would not expect a stain to still be visible, or to show so many sperm cells concentrated in one area, if the jeans had been washed.

Rudin’s expert opinion convinced the Virginia Supreme Court to reject the prosecution’s theory. The court also rejected the prosecution’s cheeky attempt to argue that the jeans might not have been the ones that the victim put on after the rape. That argument clearly could not have been advanced in good faith, given that the prosecution relied on those very jeans as evidence at Scott’s trial.

The court also rejected the prosecution’s contention that Rudin’s expert opinion was inadmissible because she was retained by the defense. While the actual innocence law requires testing to be conducted pursuant to state standards, Dr. Rudin testified about results of tests that the state conducted according to its own standards. Virginia law does not require prosecutors to agree with defense experts before their opinions can be admitted.

In the end, the court decided that clear and convincing evidence established Scott’s innocence. No rational jury, viewing all of the evidence that is now available, would convict Scott. Accordingly, his conviction was vacated.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.