PASSAGE OF THE DAY: "Alice T. Armstrong, a senior assistant attorney general, argued against Brown's petition, among other things telling the justices that the DNA testing was not performed by the Virginia Department of Forensic Science as called for by state law. "Mr. Brown has not, and furthermore cannot, satisfy (that) mandatory requirement," she said. The testing was performed by Bode Cellmark Forensics, in Lorton, after the Department of Forensic Science was unable to obtain conclusive results and an Albemarle County judge approved further testing by Bode.Bode has been used by the state forensic laboratory in other innocence cases but under state contracts, which was not done in this case. Justice D. Arthur Kelsey asked if the court had some discretion in allowing the Bode results. "They're not some Mickey-Mouse lab," he said. Armstrong said she did not believe there was any room for discretion. She also argued, "There is not a valid chain of custody in this case ... We don't know who collected the sample or prepared the slide." And, said Armstrong, "We don't know where the thing has been for more than 40 years."
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STORY: "Attorneys for two men claiming innocence present their cases to Va. Supreme Court," by reporter Frank Green, published by The Richmond Times-Dispatch, on January 10, 2018.
GIST:Two men claiming innocence in decades-old crimes took their cases Wednesday to the Virginia Supreme Court, where lawyers on both sides were questioned by the justices. Sherman Brown, 70, serving life for the 1969 slaying of a 4-year-old boy in Albemarle County, and Roy L. Watford III, 58, convicted of raping a 12-year-old girl in Portsmouth in 1977, contend that DNA testing in recent years proves their innocence. State law requires they show by clear and convincing evidence that no rational judge or juror would have convicted them in light of the new evidence. The Virginia attorney general's office opposes both petitions - strongly, in Brown's case, and less so in Watford's, which it concedes is "challenging." Brown was convicted of the Oct. 1, 1969, murder of a 4-year-old Albemarle boy. He was identified by the child's mother, who was stabbed, beaten and apparently raped in the same attack that took her son's life. A vaginal swab was taken from the mother at a hospital emergency room and was used to create a microscope slide. The slide was discovered in a Charlottesville-area warehouse in 2015 and subjected to DNA testing. A partial male DNA profile was identified on the slide that does not match Brown or the woman's husband. It is unclear if the woman, who lost consciousness, was sexually assaulted. The commonwealth's theory of the case was that the boy was slain to eliminate a witness to the rape of his mother. The mother's DNA profile was not identified in the material on the slide. However, the hospital pathology department noted that sperm was identified on the slide. On Wednesday Susan Friedman, one of Brown's lawyers with The Innocence Project, told the justices that, "DNA has proven Sherman Brown is innocent ... No rational trier of fact would have found Mr. Brown guilty beyond a reasonable doubt." As for any chain-of-custody issue about who handled and had access to the almost half-century-old evidence, she said, "You can't speculate evidence was tampered with." Alice T. Armstrong, a senior assistant attorney general, argued against Brown's petition, among other things telling the justices that the DNA testing was not performed by the Virginia Department of Forensic Science as called for by state law. "Mr. Brown has not, and furthermore cannot, satisfy (that) mandatory requirement," she said. The testing was performed by Bode Cellmark Forensics, in Lorton, after the Department of Forensic Science was unable to obtain conclusive results and an Albemarle County judge approved further testing by Bode. Bode has been used by the state forensic laboratory in other innocence cases but under state contracts, which was not done in this case. Justice D. Arthur Kelsey asked if the court had some discretion in allowing the Bode results. "They're not some Mickey-Mouse lab," he said. Armstrong said she did not believe there was any room for discretion. She also argued, "There is not a valid chain of custody in this case ... We don't know who collected the sample or prepared the slide." And, said Armstrong, "We don't know where the thing has been for more than 40 years." Kelsey asked if the court must require perfection as far as chain of custody is concerned and asked Armstrong if she thought the court could draw inferences. Armstrong said she did not believe inferences can be strung together. Unlike Brown, who has been locked up since his arrest in 1969, Watford never spent a day in jail thanks to a remarkable plea deal that gave him a 10-year suspended sentence which he took on the advice of his grandfather, who wanted him to finish high school. Watford, who has no other criminal record, was just 18 years old when he pleaded guilty to the 1977 rape of the girl, with whom he was friends. DNA testing in 2016 found that Watford's DNA did not match the genetic profile identified in sperm recovered from the victim and her jeans. It also did not match two other genetic profiles found in sperm from two mattress stains found in the vacant house where the assault occurred. Testing in 2010 also failed to match the DNA profiles of Watford's two younger brothers - also suspects - with any of three suspect DNA profiles. Because the crime happened so long ago and because Watford pleaded guilty, there is little trial information. The justices ordered an evidentiary hearing that was held in April in Portsmouth Circuit Court. At the hearing, the now-adult victim testified that when she entered the vacant house, she saw one of Watford's brothers and other men inside. However, she said a blanket was thrown over her head, so she did not see her assailants. She said she could not recall seeing or hearing Watford - whom she knew - at the scene or recall telling police that he was among her assailants. On Wednesday Watford's lawyer, Jonathan Sheldon of Fairfax, told the justices that in light of the April hearing, "We don't have any evidence of guilt at all. How would a rational trier of fact find guilt?" Mims, noting that Watford was given no jail or prison time for the crime, told Armstrong, "That's part of why the case is troubling." Chief Justice Donald Lemons questioned whether the court should give any credence to the guilty plea. He said the sentence and the lack of a written plea agreement indicate this was handled as a way to just solve the case and get it over with. "I understand, your honor," said Armstrong. Watford, who attended the Wednesday arguments, said he felt good about things and hopeful his name will be cleared. It is not known when the justices will rule on the petitions.
The entire story can be found at:
http://www.richmond.com/entertainment/attorneys-for-two-men-claiming-innocence-present-their-cases-to/article_c83fd5af-a4e9-5d8c-857f-c330cd2527ad.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
