Here Comes A Slew of Motions

Audit: Crime lab erred in exonerated death row inmate's case


By KRISTEN GELINEAU
Associated Press Writer

Published May 6, 2005

RICHMOND, Va. -- The state crime lab made several errors when retesting evidence in the case of a former death row inmate wrongfully convicted of a 1982 rape and murder, according to an independent audit released Friday.

Although retesting of the evidence in 2000 led to the absolute pardon of Earl Washington Jr., the lab's leading DNA analyst made several mistakes, including prematurely excluding suspects when he should have ruled the DNA sample inconclusive, the audit report concluded.

As a result, Jeffrey Ban has been temporarily suspended from certain cases involving "low level" DNA samples, where the evidence contains amounts of DNA at or below normal detection limits.

Such samples were used in the case of Washington, who spent more than nine years on death row and came within nine days of being executed. He was pardoned by then-Gov. Jim Gilmore in 2000, 17 years after he was imprisoned for the killing of 19-year-old Rebecca Williams of Culpeper.

In 2004, a California scientist concluded that semen found on the victim's body was left by a serial rapist, Kenneth Tinsley. Tinsley is serving life in prison for the 1984 rape of an Albemarle County woman and was twice convicted of rape in Chicago, according to court and prison records. He has not been charged in the Williams slaying.

The audit, requested by Gov. Mark R. Warner, places some of the blame for the errors on pressure from Gilmore's office to definitively answer whether Washington was the killer. It quoted Ban as saying "inconclusive results were not an option."

"The added daily pressures to produce a result ... laid the groundwork for mistakes to be made and procedures to be modified in attempts to gather some useful information," according to the report prepared by the American Society of Crime Lab Directors/Laboratory Accreditation Board, the national accrediting entity for forensic labs.

DNA testing in 1993 cast doubt on Washington's guilt, but did not absolutely eliminate him as a suspect. As a result, then-Gov. L. Douglas Wilder commuted Washington's sentence to life in prison.

The audit pointed out errors Ban made during the 1993 retesting.

"If he had correctly reported the 1993 DNA results, Earl Washington would have been exonerated seven years before he actually was released," said Debi Cornwall, one of Washington's attorneys. "He's had seven years in prison because of (Ban's) mistakes."

In 2000, the crime lab used more sophisticated DNA tests on the evidence. The results excluded Washington as the depositor of the semen and as a result, Gilmore granted him an absolute pardon. Ban then concluded that DNA appearing on a vaginal swab came from an unknown male--not from Washington, the victim or Tinsley.

But the audit found the results of those tests should have been deemed inconclusive.

"The DNA typing results offered in this case should have, at best, been reported as inconclusive, rather than attempting to make an interpretation from poor quality information," the report said.

In a statement, Virginia Division of Forensic Science director Paul Ferrara agreed that Ban should have declared the sample inconclusive instead of eliminating Washington, Williams and Tinsley. But he also characterized the audit's focus as narrow.

"The audit report criticizes the work performed on one sub-sample five years ago based upon current technologies and standards," Ferrara said. "It also belies the major body of other work performed by this examiner in this case wherein he successfully eliminated Earl Washington and identified a new suspect, Kenneth Tinsley, on evidence found at the crime scene."

The audit included several recommendations, many of which the lab has already adopted. Among them, the audit recommends defining a process that would insulate lab workers from outside pressures in high-profile cases. Ferrara said in the event a similar case arises again, a panel of senior scientists will review any deviations from normal protocols and help with formatting the results of the analysis and conclusions.

The report also recommends a thorough examination of Ban's casework over the past five years, which Ferrara agreed to in his response.

No one at the forensics division would have any further comment on the audit, according to a secretary who answered the phone. A telephone message left at Ban's home was not immediately returned.

The implications of the audit's findings are grave, said one of Washington's attorneys, Peter Neufeld, founder of the Innocence Project.

"It casts a shadow over many of the capital prosecutions and convictions in Virginia with this laboratory and, in particular, this analyst," he said.

Thanks to Mr. Drudge for the link.