Pro Bono Help Needed for DNA Notification

06/25/08 

I am writing to request the assistance of the Virginia State Bar in recruiting Virginia attorneys to perform groundbreaking pro bono work.

In December 2005, after the exoneration of five wrongfully convicted men, then-governor Mark Warner ordered the full-scale review and testing of any biological evidence remaining in the 1973-to-1988 case files of the Department of Forensic Science (DFS). This undertaking represented the largest voluntary effort by any state to review case files for physical evidence capable of exonerating wrongfully convicted defendants. DFS has discovered 2,166 case files that contain both biological evidence and a named suspect.

In March 2008, the General Assembly directed the Forensic Science Board – the policy board that governs DFS – to notify convicted defendants of the existence of physical evidence found in the DFS case files and to advise them whether DNA testing in any particular case was being conducted by the DFS. The Forensic Science Board has no funding with which to discharge this mandate.

The board created a DNA Notification Subcommittee chaired by James O. Towey, executive director of the Virginia State Crime Commission. Also on the subcommittee are Lt. Col. Robert B. Northern of the Virginia Department of State Police; Dr. Leah Bush, Virginia’s chief medical examiner; and Steven D. Benjamin, an attorney and member of the Forensic Science Board.

The DNA Notification Subcommittee approved using the pro bono assistance of attorneys licensed in Virginia to ensure that proper notification is made to the correct individuals.The Mid-Atlantic Innocence Project has offered to train, supervise, and assist attorneys who volunteer to make the notifications.

The volunteer attorney or firm will determine the number of individuals for whom they will accept the responsibility of providing notice. Attorneys will be provided with a list of names and contact information. The attorneys then will attempt to verify the conviction and location of each individual in order to ensure that the correct individuals are notified that physical material has been located in a case file at DFS and is either available for DNA analysis or has been tested. The attorney will send a copy of the notification letter to the subcommittee for distribution to the chair of the Forensic Science Board and to the chairs of the General Assembly Courts of Justice committees.

The task of the subcommittee is to ensure proper notification. Some defendants may request advice about the right to request testing. Some defendants may request advice about the availability of the Virginia Writ of Actual Innocence (Code §19.2-327.3). Pro bono counsel will be asked to commit only to providing the notification required by the General Assembly. The Mid-Atlantic Innocence Project has agreed to recruit additional counsel, if necessary, to assist with any proceedings to determine innocence.

For more information or to volunteer, contact Steven D. Benjamin at (804) 788-4444 or sdbenjamin(at)aol(dot)com.

Steven D. Benjamin
Richmond

Updated: Jun 26, 2008