Sherman Brown: Virginia: His bid to be pronounced innocent in the 1969 murder of a 4-year-old boy has been rejected - in spite of the Innocence Project's asserion that testing of genetic material almost 50 years old proved their client, who is serving life, is innocent..."Justice D. Arthur Kelsey, writing for the court, rejected the DNA-based petition for a writ of actual innocence, holding that the testing was not performed by the Virginia Department of Forensic Science as required by state law and that even if considered, the results do not warrant exoneration. The Virginia attorney general’s office opposed the writ arguing both grounds for dismissal. Susan Friedman, one of Sherman Brown’s lawyers with The Innocence Project, said Thursday that the decision was disappointing and warned, “Today’s ruling will prevent innocent people from accessing the courts where a private lab conducted the testing, creating a major barrier that will keep innocent defendants behind bars.”

PASSAGE OF THE DAY: "Friedman said Thursday, “The testing in this case used widely accepted technologies and was performed by a respected lab that the commonwealth itself has used for testing in many cases. “The ability to perform testing at a private lab is critical. It is sometimes necessary to use validated technologies that are unavailable at DFS, and the ability to retest evidence at a private lab is an important check on potential errors or oversights in DFS’ testing,” she said."

Friedman said Thursday, “The testing in this case used widely accepted technologies and was performed by a respected lab that the commonwealth itself has used for testing in many cases. “The ability to perform testing at a private lab is critical. It is sometimes necessary to use validated technologies that are unavailable at DFS, and the ability to retest evidence at a private lab is an important check on potential errors or oversights in DFS’ testing,” she said.

STORY: "Innocence bid for Virginia man convicted of 1969 murder of a 4-year-old Albemarle County boy rejected," by reporter Frank  Green, published by The Richmond Times-Dispatch on March 22, 2018.

GIST: "A unanimous Virginia Supreme Court decision Thursday turned down an exoneration bid from a 70-year-old man who said he was wrongly convicted in 1970 of the murder of a 4-year-old Albemarle County boy. Justice D. Arthur Kelsey, writing for the court, rejected the DNA-based petition for a writ of actual innocence, holding that the testing was not performed by the Virginia Department of Forensic Science as required by state law and that even if considered, the results do not warrant exoneration. The Virginia attorney general’s office opposed the writ arguing both grounds for dismissal. Susan Friedman, one of Sherman Brown’s lawyers with The Innocence Project, said Thursday that the decision was disappointing and warned, “Today’s ruling will prevent innocent people from accessing the courts where a private lab conducted the testing, creating a major barrier that will keep innocent defendants behind bars.” In dismissing Brown’s petition, Kelsey concluded, “As the United States Supreme Court has observed, ‘DNA testing alone does not always resolve a case. Where there is enough other evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent.’” The Innocence Project argued that testing of genetic material almost 50 years old proved their client, who is serving life, is innocent. Brown was identified by the child’s mother, who had met Brown once before and spoken with him on the telephone. She 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. However, the testing was performed by an outside laboratory after the Virginia Department of Forensic Science’s testing was unable to find enough DNA to be able to include or exclude Brown’s DNA in the material. “The findings of DFS, therefore, do not support Brown’s claim of actual innocence,” wrote the court, holding that state law required the testing to be performed by the state forensic laboratory and that it had no authority under the law to consider testing performed elsewhere. Friedman said Thursday, “The testing in this case used widely accepted technologies and was performed by a respected lab that the commonwealth itself has used for testing in many cases. “The ability to perform testing at a private lab is critical. It is sometimes necessary to use validated technologies that are unavailable at DFS, and the ability to retest evidence at a private lab is an important check on potential errors or oversights in DFS’ testing,” she said. She said Brown provided the court with powerful evidence of his innocence. “Although this decision is disappointing, we will continue to seek the relief to which we believe he is entitled,” she added. The justices said that even if they considered the DNA test results from the outside laboratory, the evidence was unpersuasive. The court held among other things that it relied on the flawed assumption that the victim’s mother was raped and the perpetrator left his DNA in her vagina. “This case is not and never was a rape case,” the opinion said. “Brown was never charged with rape, and (the mother) never testified that she was raped.” The justices also noted that statements made by Brown to the Virginia State Parole Board, accepting responsibility for the crime, undermine his claim of innocence. In order to win a writ of actual innocence, a petitioner must show the new evidence was clear and convincing proof that no rational judge or jury would have found proof of guilt beyond a reasonable doubt. Even if the private laboratory’s results could be considered, the justices said Thursday that it “falls far short of satisfying this clear-and-convincing standard of proof.” Earlier this month, in another unanimous ruling, the justices granted a DNA-based petition for a writ of actual innocence to Roy L. Watford III, 58, convicted of raping a 12-year-old girl in Portsmouth in 1977."

The entire story can be read at:

http://www.richmond.com/news/local/crime/innocence-bid-for-virginia-man-convicted-of-murder-of-a/article_30047512-29f1-58cb-a8f1-5632958f651e.html

 

The actual decision rejecting Sherman Brown's innocence claim can read at the following link:

http://www.courts.state.va.us/opinions/opnscvwp/1161422.pdf

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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

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