EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 9, 2018

Project DNA: Virginia


The pertinent portion of Virginia's postconviction DNA testing statute, VA ST § 19.2-327.1(A), states that a defendant can seek postconviction DNA testing if

(i) the evidence was not known or available at the time the conviction or adjudication of delinquency became final in the circuit court or the evidence was not previously subjected to testing because the testing procedure was not available at the Department of Forensic Science at the time the conviction or adjudication of delinquency became final in the circuit court; (ii) the evidence is subject to a chain of custody sufficient to establish that the evidence has not been altered, tampered with, or substituted in any way; (iii) the testing is materially relevant, noncumulative, and necessary and may prove the actual innocence of the convicted person or the person adjudicated delinquent; (iv) the testing requested involves a scientific method employed by the Department of Forensic Science; and (v) the person convicted or adjudicated delinquent has not unreasonably delayed the filing of the petition after the evidence or the test for the evidence became available at the Department of Forensic Science.

So, where does that leave pleading defendants? 

Virginia's statute seems to contain no language that distinguishes between defendants convicted after trials and defendants convicted after guilty pleas. Therefore, it seems like pleading defendants can seek postconviction DNA testing in Virginia. Interestingly, Virginia is home to the first DNA exoneree; that exoneree was actually a pleading defendant.

In 1989, David Vasquez was the first person who proved his innocence through postconviction DNA testing.In 1984, Carolyn Jean Hamm had been found raped and hanged in her Arlington, Virginia home, with her hands bound behind her with a Venetian blind cord. Detectives subsequently interrogated Vasquez about the crime for hours.  Vasquez, who had a sub-70 IQ, eventually admitted to the crime, but he (1) initially said that he tied Hamm’s hands behind her back with ropes, his belt, and a coat hanger before being told that they were bound with a Venetian blind; and (2) initially said that he stabbed Hamm before being told that she was hanged. After unsuccessfully claiming that his confession was involuntary, Vasquez pleaded guilty to second-degree murder and burglary to avoid the death penalty. Subsequent DNA testing established that Timothy Wilson Spencer was guilty of a series of similar crimes that led to him being dubbed the “Southside Strangler.” Based on the similar modus operandi of these crimes and the likelihood that Spencer had killed Hamm, Virginia Governor Gerald L. Baliles pardoned Vasquez on January 4, 1989.




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