The Fallout

Tessa Kramer: For the last year, I’ve been wondering what the state of Virginia would do in response to our reporting. This is a follow-up episode to our 12-part series Admissible: Shreds of Evidence. If you didn’t hear it, I’d encourage you to start at Episode 1.

Our reporting uncovered how the Virginia state crime lab ignored a whistleblower’s concerns about the lab’s long-time Chief Serologist, Mary Jane Burton. As a trainee, this whistleblower, Gina Demas, gathered evidence of Mary Jane falsifying test results in a way that helped point to the police’s suspect…among all kinds of other issues. 

For decades, all the people at the lab who knew that Mary Jane was unreliable – none of them came forward. Even when it came to light that Mary Jane had saved evidence that could be re-tested for DNA… even when testing of that evidence resulted in exoneration after exoneration.

Since the podcast came out last year, a lot has been happening. I’ve been waiting for the right moment to hop back on the mic to give you an update, but I wanted to wait until we had a clear plan of action from the State. Well, it’s finally looking like we do. What is Virginia going to do about its Mary Jane Burton problem?

[Admissible theme plays]

Brandon Wrobleski: There was a serious breakdown in the law enforcement techniques used and it was a breakdown that cost a man 44 years of his life.

Peter Neufeld: You can’t trust scientifically anything that Mary Jane Burton touched. It all has to be re-examined, in every discipline.

Tessa Kramer: I’m Tessa Kramer, and this is an update from Admissible.

[Admissible theme ends]

Tessa Kramer: After Admissible came out, the current heads of the Virginia Department of Forensic Science wanted to see “Pandora’s Box” for themselves – the documents that Gina Demas had given me. I sent the lab copies, which they gave to their Scientific Advisory Committee – a group of forensic scientists and heads of crime labs from other states who advise and make recommendations to the DFS. That committee spent a few months reviewing the documents and then, in January, they called a meeting to discuss our reporting and decide what, if anything, to do about it.

The meeting is at the lab in Richmond, in a big conference room. The members of the Committee are sitting in a circle at the front of the room, and the rest of us are sitting in desk chairs facing them – like an audience of eager students.

It’s not just us “in class” today either. The desk chairs are almost full – with some heavy-hitters: forensics experts, the head of the Mid-Atlantic Innocence Project, members of the Attorney General’s Office, and Peter Neufeld, co-founder of The Innocence Project. It feels like something’s up – or maybe it’s just my own nerves. This is the moment I’ve been waiting for – to find out if all our reporting would have a real impact. I still believe there could be more innocent people out there who were convicted thanks to Mary Jane’s shoddy work. Maybe people who are still in prison.

Kathleen Corrado: Alright. Looks like it’s ten o’clock. I’d like to call the meeting to order, please. 

Tessa Kramer: As the meeting begins, I find myself thinking back to the moment I sat down with Deanne Dabbs – one of Mary Jane’s trainees who went on to be a leader at the DFS. When we showed her this same set of documents, this was her response:

Deanne Dabbs: Well, I think the implications are huge. I think it calls into question the cases that she worked. I mean all the cases, and she worked a lot of cases. A lot of cases.

Tessa Kramer: Will this committee feel the same way?

Committee Member: Clearly there were things changed, I think we can see that. We don’t know who changed them or why, um…

Tessa Kramer: They start discussing the documents where Mary Jane erased and changed test results.

Committee Member: There is some things in here, obviously, that are concerning, I think, but I don’t really have any idea why they’re like that.

Tessa Kramer: They seem… mistified.

Committee Member: It appears that there’s things being added or changed here. I don’t know what to say about that. I don’t, it’s not, I don’t really understand that.

Tessa Kramer: But they’re not exactly up in arms.

Committee Member: It’s kind of poor record keeping or it’s difficult to tell because if there’s changes that are made, um, but is there a point, is there a correction or is it on purpose?

Tessa Kramer: I feel like I’m losing my mind. Did they listen to Admissible? We didn’t just publish these documents in a vacuum, with no context. But they seem to be circling around the thing I’ve heard so many times: that this is just “poor documentation.” Which, as Gina put it:

Gina Demas: That’s bullshit. That’s not what we’ve been talking about. What we’ve been talking about is dishonesty, fraud, forging somebody’s name on stuff, going into court and testifying that something is something that it could never have been. So, poor documentation is the biggest line of bullshit I’ve ever heard.

Tessa Kramer: That is the kind of five-alarm-fire level of concern I was expecting to hear from this committee. Maybe their intentions are good but it feels to me like they’re totally missing the point. I’m beginning to wonder why I bothered making this trip, but as they move on to the next agenda point, a collision was about to occur.

Kathleen Corrado: The last piece of information that we would like to hear about is a review of the Marvin Grimm Writ of Actual Innocence.

Tessa Kramer: A new innocence case. A man named Marvin Grimm. I didn’t realize it yet but this case would be like a match struck on a pile of dynamite. And then, yes, at least five alarm bells. 

Amy Jenkins – Department Counsel for the lab – tells us that this innocence case is pending in the courts right now.

Amy Jenkins: While he pled guilty in 1976, he’s consistently maintained his innocence since that time.

Tessa Kramer: And what does this have to do with the Admissible podcast? The case was handled by Mary Jane Burton.

Amy Jenkins: Um, and there are a number of concerns regarding Burton’s work in the original case, um…

Tessa Kramer: Jenkins walks us through the facts of the case. I’m only going to share what you need to know to understand the forensics but, as a warning, it’s really awful. And it gets pretty graphic.

In November 1975, the body of a three-year-old boy was found in a river. He’d been dead for a few days. Police observed “white gelatinate material” in the boy’s throat, and the Medical Examiner and Mary Jane Burton said they saw sperm in that material. Based on that forensic analysis, the police developed the theory that the boy had been orally assaulted, choked to death on the perpetrator’s semen, and was then dumped in the river. Like I said – really awful.

As with all of Mary Jane’s cases, this was in the era before DNA analysis. Mary Jane did serology testing – blood type testing – on the material in the boy’s throat. 

And she analyzed another kind of evidence.

Amy Jenkins: Um, and the remainder of the evidence dealt with hairs.

Tessa Kramer: Eight hairs found on Mr. Grimm’s belongings – on his coat, and in his car – which Mary Jane said were consistent with hairs from the little boy. This evidence became the cornerstone of the state’s case – the only physical evidence linking Mr. Grimm to the boy. But now, DNA is telling a different story.

Amy Jenkins: Subsequent mitochondrial DNA testing of the hairs have shown that they are not the victim’s hairs.

Tessa Kramer: DNA has shown that none of the eight hairs came from the little boy. This seems pretty bad, but it’s not until Peter Neufeld from The Innocence Project takes the mic that I get why this is such a big deal.

Peter Neufeld: What’s been said about the Grimm case is extremely dangerous, extremely alarming, and is going to require more remediation than has been suggested so far. And let me tell you why. The analyst is saying, without a doubt, there’s an abundance of spermatozoa here. Everyone agrees there are no sperm. So you had an analyst who was either hallucinating spermatozoa or simply making it up. But even worse than that is the hair issue. Mary Jane Burton concluded that those eight hairs were consistent with one another, and they were all indistinguishable with a hair from the child who was abducted and killed. What’s extraordinary about that is the DNA testing shows that seven of those eight hairs came from seven different people.

Tessa Kramer: Just a quick fact check here – turns out it’s actually six different people. But I don’t think that really changes the point Neufeld is trying to make.

Peter Neufeld: Now, I’ve looked at hair analysis for more than 30 years, and I can understand where an examiner can make a mistake and say that a certain questionable hair found at a crime scene is consistent with the suspect’s hair. But I have never in 40 years seen a case where someone looked at hairs from seven different people and said they were all indistinguishable. There are seven of you on this panel. If we compare the hair from each of your heads, I assure you, without any training at all, each of us could distinguish at least one or more of the hairs in that group. Yet Mary Jane Burton said hairs from seven different people were all indistinguishable. That’s not simply incompetence, that’s not simply negligence.

Tessa Kramer: Neufeld’s basically saying: these errors are so bad, you cannot brush them off as honest mistakes or poor documentation. And Marvin Grimm served 45 years in prison for just about the worst possible thing you can imagine: the sexual assault and murder of a three-year-old.

Neufeld gives the lab props for how much improvement there’s been, especially under the current leadership. He praises how much they’ve done to improve quality assurance and quality control.

Peter Neufeld: But a critical element of QA and QC is how you deal with errors or misconduct in the past. And I’m not talking about changes in the way we write reports. Not changes in the failure to make good notes. I’m talking about when the wrong answer was arrived at 10 years ago, 20 years ago, 30 years ago, and there’s a duty to correct it, and there’s a duty to make notifications about that correction.

Tessa Kramer: Peter Neufeld’s comment was the closest thing I’ve ever seen to a literal mic drop. You could feel the air in the room shift. Like everyone’s collectively thinking…

Gina Demas: Holy shit. 

Tessa Kramer: A few days after the meeting, I call Gina, the whistleblower. I tell her about this new case.

Gina Demas: Whenever a case involves a child like that, the police go nuts. There’s so much pressure put on the lab people because they want to get this guy – “wanna get this guy off the street” – and all this kind of stuff. And if you’re an examiner who will not, you know, “I don’t have enough evidence, there’s not, I can’t get a result, blah, blah, blah,” they go nuts on you. 

Tessa Kramer: That sure sounds like what could have happened in this case… and it might be exactly what happened in this case.

Gina Demas: Right when I joined the lab, there was a case that involved a child. And Mary Jane was going nuts trying to get the evidence to get this guy put away.

Tessa Kramer [on the phone]: Really?

Gina Demas: It was a horrible case.

Tessa Kramer: Well, so the case with the eight hairs involved a three-year-old boy who was killed.

Gina Demas: Yeah, this was a little boy.

Tessa Kramer: And you remember her being, like, flipping out trying to get the evidence? 

Gina Demas: Oh, yeah, and the police – that’s what made me say that! They just – they go absolutely frickin’ nuts.

Tessa Kramer [VO]: At first I wasn’t sure if Gina was remembering accurately, but then I found her signature on some of the court records. She signed in some of the evidence that Mary Jane analyzed in this case. Which just makes me think about how this case came through the lab right around the time that Gina was growing concerned about Mary Jane’s practices, and how maybe the lab would have given this case a second look if they’d listened to Gina at the time.

This isn’t the only thing I learned from the court records, of course. As I read through them, the full story of this case comes into focus, and somehow it gets even worse.

— AD BREAK —

Jeffrey Horowitz: We’re here today because we have powerful and compelling scientific evidence that Marvin Grimm is an innocent man and this man’s lost nearly 50 years of his life, and is now a registered sex offender, after confessing to a crime that he did not commit.

Tessa Kramer: This is one of Marvin Grimm’s attorneys, Jeffrey Horowitz, arguing for Grimm’s innocence before the Virginia Court of Appeals in May 2024. I’m watching the hearing unfold on a video conference.

He walks the judges through all the issues with the forensic evidence that we heard about at the lab meeting. The eight hairs that Mary Jane falsely connected to the victim. The fact that Mary Jane claimed to see sperm from the perpetrator.

Jeffrey Horowitz: None of the evidence was found to contain even a single sperm cell and none of Mr. Grimm’s DNA has been found anywhere.

Tessa Kramer: None of Mr. Grimm’s DNA, and not even a single sperm cell found in the evidence. Which, Horowitz says, likely means one thing: 

Jeffrey Horowitz: The material identified as semen by the Deputy Medical Examiner and the forensic scientist was in fact most likely the child’s own phlegm.

Tessa Kramer: The entire theory of the case revolved around evidence of a sexual assault, provided by Mary Jane Burton and the Medical Examiner. As the hearing goes on that entire theory starts to crumble.

Brandon Wrobleski: The Commonwealth is candidly uncertain, beyond a reasonable doubt, whether a crime occurred in this case.

Tessa Kramer: A lawyer with the Attorney General’s Office, Brandon Wrobleski, takes the floor. In a rare move, he and the Attorney General’s Office have joined to support this innocence petition. Usually the State contests them – they stand behind the original conviction – but as Wrobleski argues to the Court, the evidence of Mr. Grimm’s innocence is overwhelming. So overwhelming that it undermines even the basic assumptions about how this boy died.

Brandon Wrobleski: The Commonwealth wants to be able to say to the court today that modern science supports Mr. Grimm’s guilty plea. 50 years later, even 50 years later, we should be able to scientifically corroborate and validate Mr. Grimm’s confession. But modern scientific analysis completely debunks everything the Commonwealth relied upon in 1975.

Tessa Kramer: The hearing ends, and the judges are left to decide whether to grant Mr. Grimm’s innocence petition. A couple weeks later, I talk to Brandon Wrobleski from the AG’s Office. I’m curious how much he knows about our reporting on Mary Jane Burton.

Brandon Wrobleski: We probably became aware of your reporting several months into evaluating the case. What fortuitous timing that you’re doing incredibly thorough reporting on this particular individual and her work and there’s a case in the Court of Appeals that directly involves the forensic science analysis that she did. So, I mean, it’s great timing.

Tessa Kramer: Great timing in the sense that as he was looking at Mr. Grimm’s case, trying to make sense of the evidence and Mary Jane’s results, our reporting did raise some questions for him.

Brandon Wrobleski: In truth, I can only evaluate what is the evidence that the court is also evaluating. But to say that it did not have an effect on how we view that evidence would be just not true. I think viewing what had been reported, to see, “Oh wait, there’s actually concern about her methods in other cases.” That certainly caused us to view this case with a much more critical eye, and to really dig in and question: Do we have a valid conviction here? And the answer we came to was: No, we do not.

Tessa Kramer: Wrobleski says that the faulty forensics kinda blew his mind. The DNA that didn’t match Mr. Grimm, the fact that Mary Jane claimed to see sperm in material that was not even semen at all.

Brandon Wrobleski: That’s just like, hold on a minute, stop right there. Do not pass go, do not collect two hundred dollars.

Tessa Kramer: He tells me about a pivotal meeting he had at the lab a few months back where he started to realize what this forensic mess actually means.

Brandon Wrobleski: We left that meeting wondering aloud: Was there a crime here? It was… it was surreal. You know, we’re trying to not get over our skis. We’re trying to not get into any kind of hyperbolic arguments. We’re trying to just say, what is. What have we found? What have we confirmed? And the things that we are finding, and the things that we are confirming, are that there was a serious breakdown in the law enforcement techniques used to point the finger at Marvin Grimm and it was a breakdown that cost a man 44 years of his life.

Tessa Kramer: A couple weeks after this conversation, I got an email from Wrobleski. The Court had just granted Mr. Grimm’s petition. As of June 18th, 2024, Marvin Grimm is legally innocent of this crime. I won’t deny that it’s gratifying that our reporting played a small role in pushing the Attorney General to support the innocence petition. But seriously… a lot of this could have been avoided, or at least rectified a lot sooner – like decades sooner.

Peter Neufeld: Certainly, had the state forensic science laboratory been more forthcoming about Mary Jane Burton than they were, a lot more questions would have been raised, a lot more of her casework would have been re-examined, and perhaps the totality of all that would be that a case such as Mr. Grimm’s would be treated differently in the courts. 

Tessa Kramer: I sit down with Peter Neufeld of The Innocence Project. His team has been heavily involved with Mr. Grimm’s case for many years.

Peter Neufeld: To look at hairs that we now know for a fact come from six different people, and say they’re all consistent with coming from the same person, suggests that there was a deliberate fraud on the part of Ms. Burton.

Tessa Kramer: How the hell does something like this happen? Well, we made an entire 12-part series that basically answers that question.

Peter Neufeld: The State never came forward with the extent of the concerns they had with Mary Jane Burton.

Tessa Kramer: However, Neufeld is quick to tell me how much better things are now, under the lab’s current director Linda Jackson, compared to how things were when Gina and Mary Jane worked there, or even in the early 2000s.

Peter Neufeld: The difference in the directness and how forthcoming the current director of that laboratory is, is night and day. She really cares about the integrity of the laboratory and there’s no question in my mind that she and other people in leadership would like to do a lot more to get things right. But they still don’t necessarily understand all the consequences of this. 

So, for instance, one consequence of this is if we know that anything she did with hair or serology can’t be trusted, what about what she did with other trace evidence? She was probably also working with glass, fibers, and other kinds of trace evidence. You can’t trust scientifically anything that Mary Jane Burton touched. It all has to be re-examined in every discipline. Everything.

Tessa Kramer: Okay, what is the state doing? Let me tell you. 

After Neufeld’s mic drop moment at that meeting where the Scientific Advisory Committee discussed our reporting, the lab formed a working group with a range of stakeholders – not just DFS employees, but prosecutors, innocence lawyers, defense attorneys, etcetera. That group came up with a game plan.

It’s basically a two-pronged approach. The first prong is a case review – trying to get their arms around how many people might have been impacted here. How many cases did Mary Jane Burton touch? This is no small undertaking. Luckily, State Senator Scott Surovell listened to our podcast and took an interest. He helped set aside funding for the State Crime Commission to get involved and they’ve already been digging into the numbers. In April, a researcher named Christina Arrington presented on their progress so far.

Christina Arrington: So at this point, 10,283 DFS lab numbers have been identified where Mary Jane Burton was the forensic examiner, of which 4,858 include at least one named suspect.

Tessa Kramer: Over 4,800 cases with a suspect?? That’s a lot of people! 

One of the biggest questions I’ve had since early in my reporting is how many people are still in prison today based on Mary Jane’s work. The lab finally has an estimate there, too.

Amy Jenkins: The next biggest group that we’re concerned about are the incarcerated individuals. We’re thinking we’re at 108 right now, I think.

Peter Neufeld: People are rotting in jail who shouldn’t be there. You gotta do something about that and do it quickly.

Tessa Kramer: To be clear, a lot of the people convicted are probably guilty – but some may not be. And that’s where the second prong of the lab’s response comes in. 

In addition to the case review, they’re trying to get the word out as quickly as possible – sending out letters to prosecutor’s offices and sheriff’s departments, as well as inmates in Virginia prisons. They say they’re going to send out a notice on prison tablets to try and reach incarcerated people as directly as possible.

And I really want to give the lab credit: they heard the concerns we raised in Admissible about notifications they’ve sent out before.

Amy Jenkins: Part of the criticism that was raised in the podcast was that the letter was frightening to people who received it or confusing, so I tried to keep this as simple as I could.

Tessa Kramer: The lab’s counsel, Amy Jenkins, drafted these notification letters, and they are much better than the ones they’ve sent in the past. They sound like a human being wrote them! And they say – I’m paraphrasing here – “You might want to get in touch with The Innocence Project Here’s their phone number.”

Part of the improvement here might be because the lab is bringing in people from innocence projects and the crime commission from the jump. The fact that the lab was so insular and secretive about the previous look at Mary Jane’s cases was another one of our criticisms that they’re trying to address.

As of right now, the lab has sent notifications to prosecutors and law enforcement. They are still working on notifying people who were convicted, including people in prison.

There are other options besides this kinda whack-a-mole approach. Other states who have lost confidence in an analyst’s work have taken more sweeping actions. I bring this up with Neufeld.

Tessa Kramer [to Neufeld]: Well, and I wonder too, like, could it get to a level where they decide her work is so unreliable and they just do more blanket vacating convictions or issuing pardons, like they did in Massachusetts with the drug scandals.

Peter Neufeld: So the difference between Massachusetts with the drug cases and Virginia is that those were people, generally, who were sentenced to a year or two for a drug conviction. Whereas the cases we’re talking about with Mary Jane Burton are either homicides or sexual assaults where the sentences are 30, 40, 50 years, or death. And so, I would be surprised if they did blanket pardons.

Tessa Kramer [VO]: Fair enough. Maybe that’s not the right approach. But my take? The lab’s response to this big, systemic failure, affecting thousands of cases, leaves me wanting more. I mean, it’s not like they’re carefully reviewing Mary Jane’s serology work, in every case, to see if they find a pattern of errors. At this point, the lab is just figuring out which cases she worked, and then trying to get the word out about the concerns about Mary Jane. 

And here’s my problem with this approach: It places the burden, then, on the convicted person – sort of just tossing the ball back into their court. Then it’s on each one of them to pursue DNA testing or any other options. I can’t help but feel like this is a pretty piecemeal approach – one that could drag on for years, and one that could easily miss a lot of people.

Peter Neufeld: You know, let’s see what happens. I still think that they’re kind of overwhelmed by the significance of all of this and it’s going to take them a while to sort of catch up to it – if ever. I don’t know if they will. But if you’re talking about people who may have been executed because of the work of Mary Jane Burton or still in – there are people who are still incarcerated for work that she did 50 years ago! I can’t even think about how horrific that is, I mean, it’s just so unconscionable, but it’s now going to all have to be re-examined. Nothing less is adequate.

Tessa Kramer:  I want to share one more thing with you. For years, I’d hunted for this, and I was told over and over again that it didn’t exist.

Prosecutor James Updike: State your name, please. 

Mary Jane Burton: Mary Jane Burton. 

Tessa Kramer: This is an actual recording of Mary Jane Burton testifying. To be clear, this is not the Marvin Grimm case – this is a totally unrelated trial that just happened to be filmed.

Mary Jane Burton: That’s the third one on your, on your chart here. And here again, um, it was human blood. 

Tessa Kramer: The strangest thing about finally hearing Mary Jane speak – about five years after I first came across her name – is that she’s pretty much exactly what I expected. She’s tall, with short gray hair, wearing a tan suit jacket and her glasses on a chain around her neck. She carefully walks the jury through her findings.

Mary Jane Burton: Here again, first one on page four, I identified human blood and it was type O. Here again, it was insufficient in amount for further typing.

Tessa Kramer: She makes a compelling witness.

Defense Attorney Richard Neaton: Sometimes you can get erroneous results. Is that correct?

Mary Jane Burton: No, I didn’t exactly say that. I said sometimes we don’t pick up the factors if they’re too dilute, and particularly in the case of an A2.

Tessa Kramer: As I watch, I’m struck by how carefully she chooses her words – how precise and, well, reliable she seems.

Mary Jane Burton: It’s more difficult to pick up on a dried stain and if it’s a very tiny, diluted stain, we might not pick it up. That doesn’t mean it’s an erroneous result. 

Tessa Kramer: And yet, here we are almost 50 years later, still cleaning up the mess Mary Jane left in her wake. Several different people – even Gina – told me that Mary Jane seemed to really think she was doing the right thing.

Mary Jane Burton: Yes, sir. I did. 

Tessa Kramer: …that she thought it was her job to help the police close cases and get “bad guys” off the street. And one thing that I want to make sure doesn’t get lost in all of this is that she didn’t act alone.

Mary Jane Burton: That’s true. 

Tessa Kramer: Many people at the lab knew that her work was unreliable. And when those same people learned that there was DNA evidence that could be used to test her cases – they didn’t come clean about what they knew about her.

Mary Jane Burton: That’s right.

Tessa Kramer: Mary Jane was an egregious case but she wasn’t a fluke. She was a product of the system in which she worked. And I guess it feels like that’s missing from the lab’s response too. It doesn’t feel like anyone’s actually taking accountability for that bigger, systemic failure. No one is acknowledging that the way the lab’s leadership handled this in the 1970s was unacceptable. That Gina was right, and the lab should have listened to  her to stop some of the damage that is now far too late to undo.

Mary Jane Burton: That was such a small stain, I would not be able to type it any further. 

Prosecutor James Updike: Thank you so much, Miss Burton.

Judge William Sweeney: Any further questions?

Defense Attorney Richard Neaton: No. 

Judge William Sweeney: The witness may step down. The witness is excused. Let’s take that short coffee break you mentioned yesterday.

Tessa Kramer: It could be months – maybe years – before we know the full impact of the lab’s actions. We’ll share any big news here in the Admissible feed, but also keep an eye on vpm.org for the latest updates. Thank you, as always, for listening.

This episode was produced and edited by me, Tessa Kramer, and Ellen Horne. It was mixed and scored by Charles Michelet. Special thanks to Megan Pauly, Ben Paviour, Meg Lindholm, Gavin Wright, Kim Nederveen Pieterse, Chloe Wynne, Dana Bialek, Danielle Elliot, and Steve Humble.