After all, Virginia authorities never did successfully contact Barbour to acknowledge his innocence. It was Jonathan Sheldon, a private-practice attorney in Fairfax, Va. who took it upon himself to contact Barbour and many of the other 70-some men who have been convicted of crimes, excluded by DNA testing, and never advised of that fact. As of today, the state has given him only 32 names and Sheldon says he has already located most of them. Some are dead. Some are dying. Some suffer from mental illnesses that make it impossible for them to even understand why he is calling. As the Richmond-Times Dispatch’s Frank Green, who first reported on Barbour’s exclusion by DNA testing, wrote last month: “The Virginia Department of Forensic Science has issued reports that exclude at least 76 felons as the source of biological evidence in their cases.” Yet as of last month, 29 of those felons had not been notified that the new DNA reports existed.
Sheldon launched this crusade to notify as many innocent men as possible because, in his view, neither Virginia’s crime lab nor its prosecutors’ office is taking that task seriously. How the Commonwealth of Virginia managed to put the crime lab and prosecutors’ office in charge of retesting DNA and notifying the prosecutors of the state’s own errors is one of the mysteries here. It would appear to be a program destined to end in confusion, obstruction, or worse. And it has.
I spoke to Pete Marone, director of the Virginia Department of Forensic Science. Marone argues that the state’s crime lab should not be making legal determinations about the meaning of these DNA tests. “At what point does the lab’s responsibility end?” he asks. “We’re a lab. We do analysis. We don’t determine what the meaning is.” He says that the crime lab’s policy is to turn over their results to the police department and prosecutors, who are in a better position “to ascribe value to those numbers.”
Initially, Virginia’s state authorities had no plans to notify the convicts that their DNA was being tested. Then, in 2008, the state legislature ordered them to notify those same convicts that their samples had been found and might be examined. If a convict failed to return the paperwork, the sample was tested nonetheless. Despite Marone’s claim that the Department of Forensic Science only conducts lab work, it alone is responsible for informing state prosecutors and police that former convicts have been cleared by DNA tests.
The department put out a call to pro bono lawyers around the state, who were asked to hand-deliver notifications that the accused might now be subject to DNA retesting. But there was a condition: Those lawyers were required to sign confidentiality agreements indicating that they were barred from explaining the content of the letters to the accused or from representing them in court. Marone explains the rationale for constraining these volunteer lawyers: “The General Assembly said to send pro bono attorneys,” he says. “They can’t go blabbing all over the place. They can’t have the person they are notifying be their client.” He adds that this was done, in part, to protect the pro bono lawyers: “If you send a young, new attorney to a bad neighborhood, bad things could happen.”
The letters themselves were mainly legal jargon, and most of the recipients had no idea why the state was contacting them. Here is a copy of one of the state’s notification letters:
According to Deirdre Enright of the Innocence Project at the University of Virginia Law School (and one of Barbour’s lawyers), most of the recipients were simply terrified that the commonwealth was re-examining their alleged crimes at all. The volunteer lawyers who delivered these letters were reduced, more or less, to being carrier pigeons, unable to explain the crucial significance of these letters’ content for the lives of these men and their families. The net effect was simply to frighten most of the convicts who received them, who knew only that the justice system was spontaneously taking another look at them decades later.
Marone sees it differently. “This is the criminal justice system,” he says. “The answer is not to release all the criminal records to the newspapers. Lots of these folks hear about the testing and say ‘I did my time. I’ll tell you what to do with your report.’ We couldn’t go searching the streets for people.”
The lawyers at the UVA Innocence Project believe that’s wrongheaded. Those who have been convicted of a crime they did not commit want to know that they could now be proven innocent. They also quickly realized that the worst possible agency to be notifying individuals—the prosecutors and state crime lab—had taken the sole authority to help them. Matthew Engle, legal director of the Innocence Project Clinic, tells me that those agencies are “not in the business of exonerating people, they’re in the business of convicting people.”
Enter Jonathan Sheldon. A successful Northern Virginia attorney, Sheldon has long been involved in death row cases and has worked for years to try to end the death penalty in the commonwealth. Indeed, he was one of the lawyers for John Allen Muhammad, the D.C. sniper. As he learned of the pro bono lawyers fanning out across the state, Sheldon grew infuriated that Virginia was unwilling to release the names of the more than 70 people who DNA testing suggested were innocent. “Why ask for volunteer lawyers to find people and tell them about DNA testing that might be meaningless?” he asks. “Why was the state trying to eliminate all these lawyers from representing all these people?”