VIRGINIA JUSTICE IMPROVED – IF NOT NOW WHEN? 5/1/2013 update 10/1/2014 Introduction By: Albemarle Sheriff J. E. “Chip” Harding I have asked many people the same question, “If you could improve our justice system to make sure that fewer people were wrongly convicted of crimes and more serial predators were removed from our streets, would you want to do it? The answer is always the same, “absolutely”. The improved use of DNA technology over the past 25 years is providing us with insight into how to accomplish both goals. Virginia established the nation’s first DNA Databank in 1989. It has proven to be a tremendous tool in finding the guilty and assisting in freeing some of the innocent. There are safeguards in place to protect misuse so it has NEVER been compromised. Now is the time to expand the databank to include all criminal misdemeanor convictions. The added profiles will cause the “hit” rate to go up and assist the justice system in keeping our communities safer. Serial predators will be identified much earlier in their careers and save many Virginian’s from being victims of violent crime. New York State just expanded their Databank last year. It is now time for Virginia to do the same –IF NOT NOW WHEN? In Virginia in 1988, Timothy Spencer became the first murderer in the United States whose conviction was based on DNA evidence. He was convicted as a serial rapist/murderer and executed in 1994. In one of his murders an innocent man, David Vasquez, had already been convicted .Vasquez became the first American exonerated on the basis of contradictory DNA evidence in 1989. It was reported that despite an agreement in his plea deal, Vasquez had not been assigned to a psychiatric unit in prison, and instead was placed in general population where for years he was raped and abused. Hundreds of exonerations have followed around the country. The Innocence Project alone has helped with over 300. In eighteen of those men had been on death row, all for crimes that DNA helped proved them to be innocent. Several states have established an Innocent Commission to study what actually caused the wrong convictions. There was a private sector Innocence Commission in Virginia at one time. Much research has now been done and many recommendations have been made, but most have not been followed through. I think most politicians are afraid of being viewed as “soft on crime”. I have been working in Virginia’s justice system for over forty years and I am convinced that “conservative” law enforcement officers and prosecutors can find much common ground with so called “liberal reformists.” Improving police and prosecutorial procedures, along with enacting legislation can make a difference. Proper changes will result in safer streets. When an innocent person is convicted, the guilty person is free to continue to victimize. The cost of incarcerating the wrong person is very high--not only in a humane sense but also to state budgets at an average cost of $25,000 a year. It is highly likely that in time, wrongful convictions will fade from public view, the issue and potential reforms swept from the national agenda as pretrial DNA testing is used. The “window of opportunity” to improve our justice system will soon close. When a plane crashes there is an investigative body that reviews the accident and makes recommendations to prevent future crashes. The time is now for a government sanctioned Innocent Commission –IF NOT NOW WHEN? Supporting Data for Databank Expansion: Why include all misdemeanors? As the size of the offender databank increases, so does the number of “cold hits” from crime scenes. In 1998 Virginia was averaging only 2 to 3 hits a year. I formed a group called “Citizen’s for DNA” and successfully lobbied for funding to have 140,000 collected felon samples processed. These samples had been stored in refrigerators for years untouched. The database of known offenders grew and the “hit” rate has gone to 2 to 3 hits a day (see attached graphs).All crimes would almost triple the intake of samples per year into the databank. There is an assumption that a significant number of felons were first convicted of misdemeanor crimes prior to gradually evolving into more serious criminal activity. One of the briefing points used in the New York State Databank Expansion effort stated: In the 5 ½ years since petit larceny-the pettiest of crimes-has been a DNA eligible offense in N.Y. State , convicted offender samples have helped solve 965 crimes, including 51 murders, 222 sexual assaults, 177 robberies and 407 burglaries. On average, offenders linked to crimes in N.Y. State had three prior non-qualifying convictions before finally being convicted of an offense that required a DNA sample to be taken. This has been my observation over the past 40 years while working as a juvenile probation officer, police officer, serving as Chairman of the Virginia State Board of Juvenile Justice and as Sheriff. Ask any probation/law enforcement officer or prosecutor and most will tell you the same. Most criminologists agree that the “crime prone years” are from ages 13 to 24. The sooner you get DNA profiles into databanks the quicker you have a chance at a “cold hit” from a crime scene of a budding career criminal. Many offenders charged with felonies for the first time actually end up pleading to misdemeanors. One of Charlottesville’s most notorious serial rapists in the past 30 years is Shannon Malnowski. Malnowski had a felony assault reduced to a misdemeanor in 1992 and a felony breaking and entering reduced to a trespass charge in 1994. In 1996 he raped a UVA student who was out jogging and in 1997 a 78 yr old professor’s wife in broad daylight in some bushes near the Culbreath Theater. In 2000 a student was raped on the Charlottesville High School track. Malnowski became a suspect and we obtained his DNA. It “hit” in all three cases. He was sentenced to life plus 50 years. If a DNA sample had been taken for the misdemeanors, he would have been caught after the first rape and the latter two rapes would have never occurred. Virginia’s databank research shows approximately 85% of hits would have been missed if the Databank was limited to only violent offenders. Approximately 39% of violent crimes solved were perpetrated by individuals with previous property crime convictions. In many cases the DNA Databank is more important than the fingerprint database. My first “cold hit” in an investigative case in Charlottesville was a UVA student who was robbed and raped at gun point in complete darkness. We found DNA at the scene and got the “hit”. The partial fingerprints recovered had NOT hit. Later we had them compared by experts directly to the suspect and got a positive match of a partial print taken from our victim’s door frame. A 2010 RAND study reports that it is more important to make sure that you place heavy emphasis on the proper processing of crime scenes and the DNA material collected. Brad Jenkins, Virginia DNA Section Chief, reports there is NO Back Log in processing profiles from violent crimes. Most misdemeanor offenders in Virginia are in a databank called the Central Criminal Records Exchange (CCRE). It currently contains the names, photographs and finger prints of all juveniles and adults that are convicted of misdemeanors/felonies. Why not make DNA bio-metric “fingerprints” also available in a data bank? If Nathan Washington had contributed a DNA profile when convicted of a misdemeanor 1998, he never would have been the notorious “Charlottesville Serial Rapist” who raped at least 7 women over a 10 year period .His DNA would have “hit” from a rape in 1997 of a woman in Waynesboro. I would not have had to go into one of his victim’s homes and see blood spattered over three walls where he had beaten and raped her for hours. His 6 Charlottesville rapes would have never occurred. . . DNA Section Chief, Brad Jenkins, reports that there are 7,700 DNA profiles from crime scenes in Virginia’s Databank of unsolved crimes. How many notorious cases are there in Virginia where there is a crime scene DNA profile that has not “hit” in our databank because the predator only has a misdemeanor conviction–is Morgan Harrington’s killer one of them? While once quite costly, the expense of processing offender samples (a swab from inside the cheek) has dropped dramatically down to $35—a small price to pay to prevent Virginian’s from being victimized. First time offenders can afford pay this amount. I met with the director of the Department of Forensics, Linda Jackson, in July of this year and she confirmed this amount. Supporting Data for a Government Sanctioned Innocent Commission Virginia’s Crime Commission has made some positive progress since the mid-nineties when then Attorney General Mary Sue Terry made the now famous statement, “After conviction innocence is irrelevant” while arguing against a death row inmate’s rights to have DNA test run to prove his innocence. An Innocence Commission would be made up of select volunteer members with specific backgrounds and be dedicated to a single task (unlike the Crime Commission) which could be accomplished in a timely manner at little cost. The numbers of wrongfully convicted go well beyond the DNA exonerations because we know that fewer than 20 percent of violent crimes involve biological evidence. As stated in the introduction, the “window of opportunity” will soon close as post conviction DNA has brought us into a new age of crime fighting. The old cases that occurred prior to DNA that have now found their way to exoneration will start to diminish. The spotlight will move off of wrongful convictions and the public will assume all is well—when in fact procedures/practices and laws, left unimproved, will still be contributing to thousands of wrongful convictions a year in this country. A wrongful conviction bears the expense of an investigation, a prosecution and $25,000 a year for incarceration— plus a person who is wrongly convicted could potentially win millions of dollars in a settlement. I recently assisted with the investigation of a wrongful conviction of Mike Hash. Hash was convicted for a murder in Culpeper County. Senior US District Judge James Turk wrote the following in his conclusion when granting in favor of a writ of habeas corpus, “In this case the court is disturbed by the miscarriage of justice that occurred in this case and finds Hash’s trial an example of an “extreme malfunction” in Virginia Justice System.” One of the primary investigators in the Hash case was Scott Jenkins who was recently elected Culpeper Sheriff. He has reportedly stated he felt pressured by Sheriff Leo Hart to make the arrest even though he did not feel it was supported by enough evidence. If one researches Hart, you will see he was one of the principal investigators in the Earl Washington case. Washington came within 9 days of being executed for a crime he did not commit— before DNA proved his innocence. He had been coached into a false confession with specific facts supplied by investigators .Legal professionals feel that in both of these cases there is strong evidence to suggest that not only were poor police/prosecutorial procedures followed, but in fact laws of perjury and civil rights violations occurred. Brandon Garrett stated to me that in the first 250 exonerations he studied, NO one was prosecuted and held accountable for any wrong doing. Our Justice system must start policing itself or we will lose the respect and confidence of those we are charged to protect. Cases researched indicate that only a small percentage of wrongful convictions appear to have intentional wrong doing by justice officials. The majority are because of faulty policy and procedures. Most of the areas identified would cost very little to rectify. The top areas that need reforming include such areas as : contaminated confessions, eyewitness misidentification, flawed forensics, use of questionable informants, tunnel vision, ineffective appointed counsel and lack of post conviction remedies to address a wrongful conviction. Much of the above can be improved with very little cost by changing training practices, policies, procedures and laws. There has been a wealth of research recently devoted to the study of why innocent people have been wrongly convicted. UVA Law Professor Brandon Garrett has recently written “CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG”. This is the study of the first 250 Innocent Project Exonerations. The book answers my question, “If DNA proved they did not do it, and then what went wrong that caused them to be convicted?” Jon B. Gould is the law professor who chaired Virginia’s private sector Innocence Commission that studied a number of exonerations in Virginia. He also authored the book “INNOCENCE COMMISSION”. The ICVA produced a report “A vision for Justice” in March 2005. The Innocence Project, Illinois’s “Ryan Commission,” and other state sanctioned Innocence Commissions—especially in North Carolina and California, have published findings. My point is—the research has been done. I have spoken with both Garrett and Gould, both of whom are willing to serve on a new government sanctioned VA Innocence Commission. Now it’s time to find common ground on recommendations and move forward. Most Recent Virginia DNA Databank Statistics from Department. of Forensics web site 6/3/2013 –Supreme Court Okay’s DNA Testing “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure," Kennedy said. "Taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." 10/14/2014 – It is now my position that DNA should be taken upon conviction of any criminal misdemeanor in Virginia (any offense that is punishable by a period of incarceration). In 99% of these cases we currently are already take fingerprints. I mentioned above two Charlottesville cases where there were victims that would have been saved if my recommendation was law. The same would be true of the famous “East Coast Rapist” who had 18 known victims. Half those victims would have been saved on Nov. 11, 2003 when, Aaron Thomas, was convicted of a misdemeanor Assault and Battery. The 3 teen agers out on Halloween night in Dale City, VA would never have been assaulted. Hannah Graham would have never met her accused abductor Jesse Mathew if his DNA had been collected when he was convicted of criminal trespass in August of 2010. His DNA would have generated a “hit” at that time in the databank to the 2005 sexual assault in Fairfax. If convicted of that attack he most likely would have been in a jail cell at the time Hannah was walking on the Charlottesville Downtown mall.