Chapter 7: Too Little Too Late

Peter Neufeld: Sometimes when all the other evidence was destroyed, we could find a slide buried in the basement of a hospital that was 30 years old. 

Tessa Kramer: As co-founder of the Innocence Project, Peter Neufeld’s work depends on finding evidence.

Peter Neufeld: We found evidence sometimes stuffed in a brown paper bag wedged behind the prosecutor’s desk, and so it was sitting there next to an old ham and cheese sandwich. So we have found evidence in all kinds of peculiar places.

Tessa Kramer: In the case of Marvin Anderson – the wrongfully convicted man we met in our first episode – they had been told over and over again that there was no evidence left. But Peter Neufeld took another shot, convincing the lab’s director to look one last time, and…  

Paul Ferrara: Holy cow, we still got some of this evidence.

Tessa Kramer: I’ve always seen this moment – the “holy cow moment” – as the first domino that tipped over and set off a chain reaction turning up Mary Jane Burton’s clippings and resulting in 13 DNA exonerations. But Peter tells me that’s not exactly how it went down.

Peter Neufeld: When we found the evidence, Paul Ferrara, who was the director of all the state labs said, “Oh, let’s test it.” A few days later, I get a call from Paul Ferrara saying that the state is not allowing me to do the testing. Which was stunning to us. 

Tessa Kramer: They had the evidence. They had the technology. The problem?

Peter Neufeld: The 21 Day Rule.

Tessa Kramer: A Virginia law that basically said:

Peter Neufeld: 21 days after a conviction is final you can’t go back into court for any reason. That’s it. It’s over.

Tessa Kramer: A lot of states have something like this on the books – a rule to prevent people from appealing cases over and over. These rules are based on something called…

Peter Neufeld: The doctrine of finality: the notion that if you retry the case, the passage of time will not permit a more reliable verdict the second time.

Tessa Kramer: Which kinda makes sense…

Peter Neufeld: Memories fade, evidence is lost, witnesses can die. 

Tessa Kramer: But…

Peter Neufeld: Obviously the 21 day rule was a rather draconian expression of the doctrine of finality. Evidence is not lost, memories don’t fade and witnesses don’t die within 21 days of the jury verdict. It was a ridiculous, ridiculous rule.

Tessa Kramer: Ridiculous as a 21 day window was, it started looking even more absurd once DNA entered the picture.

Peter Neufeld: The beauty of DNA is that the DNA evidence could actually reach a more reliable outcome 30 years later. I mean, DNA created a kind of revolution that way. And most of the doctrines of finality in the 50 states fell. And one of the places where a new rule was established immediately was Virginia.

Tessa Kramer: Virginia passed a law, creating an exception to the 21 Day Rule for new scientific evidence. Marvin’s team again asks the state for DNA testing – and this time the state has no choice but to comply. The DNA clears Marvin’s name.

(Admissible theme begins)

Tessa Kramer: What happened next? How did one exoneration turn into thirteen? And why did it take another eighteen years?

Jon Sheldon: I don’t know anybody outside the department of forensic science that views this as anything other than a bureaucratic disaster. 

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

(Admissible theme ends)

Tessa Kramer: At first, the discovery of clippings in Marvin’s case file is seen as a one-off. An aberration. A single stroke of good luck. About two years pass before anything else, when then…

[Archival]: He had been imprisoned for 20 years, but just hours ago, Julius Earl Ruffin walked out of a state prison, a free man – that thanks to new DNA evidence. 

Tessa Kramer: In 2003, news breaks that a second man was cleared by DNA testing on Mary Jane’s clippings. How did it happen? After hearing about the 21 Day Rule changing, Earl Ruffin had written to the state himself asking if they had any evidence… 

[Archival]: Ruffin was told his evidence had been destroyed after 10 years like most other cases back then. But as it turns out, a state forensic scientist kept her own files of evidence.

Tessa Kramer: Another year and a half passes and then, like an echo…

[Archival]: After serving 23 years behind bars for a crime he didn’t commit, 49 year-old Arthur Whitfield is a free man.

Tessa Kramer: When a third man is cleared, the media starts to ask: How much more evidence might be gathering dust in the State Records Center? And still, no one at the lab goes public about the fact that Mary Jane regularly saved clippings…and Dr. Paul Ferrara insists the lab has no plans to do any kind of blanket search for more of them. At this point, Governor Mark Warner gets involved.

Mark Warner: You’ve got the swabs that she had kept at her home and I think in a box or something. 

Tessa Kramer: Honestly, I was pretty impressed by how much detail now-Senator Mark Warner does remember. This is all happening in 2004, just two years into his first term as Governor. He’s trying to figure out what to do about this trove of evidence, so he sits down with some folks at the lab…

Pete Marone: The governor said “Woah, we’d better take a look at these. Let’s see how big of an issue this is. Let’s do a sampling.”

Tessa Kramer: This is Pete Marone – the guy Dr. Ferrara hired to clean up the serology department back in 1978 in the wake of Gina’s lawsuit. 25+ years on, Pete is now one of Dr. Ferrara’s top deputies. And as Warner starts talking about doing DNA testing on a random sample of Mary Jane’s cases, Pete raises a concern.

Pete Marone: You do realize that we’re going to find one. And if we find one then we’re going to have to do them all. This is going to cost a lot of money. Because this neat project, very ethical project, very appropriate project—it’s very important that you don’t get hung out to dry. The laboratory can’t afford what it’s going to cost to work all these cases.

Tessa Kramer: Warner remembers this moment too.

Mark Warner: Reaction was: if the Commonwealth of Virginia was incarcerating people that were innocent and we had, obviously, a history in Virginia that disproportionately convicted people of color, the idea that there would be costs involved seemed a small price to pay to get to the truth.

Tessa Kramer: As a first step, Governor Warner orders the lab to search 10% of its case files from the 15 years that Mary Jane worked at the lab. 

Pete Marone: It was really random. Let’s take this box, this box, this box, this box. Not knowing what was in them.

Tessa Kramer: They come up with 31 cases that fit the bill – cases with viable clippings and a convicted suspect. They run the DNA and…

Mark Warner: Literally found three more people.

Tessa Kramer: Three more wrongful convictions out of 31 random cases.

Peter Neufeld: People who hadn’t even requested post-conviction DNA testing. We were shocked by it!

Tessa Kramer: That’s the Innocence Project’s Peter Neufeld again. A reporter asks the lab’s Director, Paul Ferrara, about these shocking results. 

Reporter [Archival]: These people were innocent based on the evidence you went back and reexamined? 

Paul Ferrara [Archival]: That’s correct.

Reporter [Archival]: That’s astounding. 

Paul Ferrara [Archival]: Uh, I couldn’t agree more. 

Tessa Kramer: As soon as the results are announced, Governor Warner orders the lab to search all of its serology cases from the years Mary Jane was at the lab, and to run DNA testing on any of them with viable clippings.

Mark Warner: Once you saw that literally three of the 31 were exonerated? I don’t recall that being a hard decision. You know, when you see and meet people who’ve been incarcerated unfairly by the state – you gotta go to the truth.

[Archival]: So the state of Virginia did the only thing it could do and decided to review every one of Mary Jane Burton’s cases.

[Archival]: Warner ordered that all of her cases be reexamined.

[Archival]: Here in the crime lab, technicians are sifting through hundreds of boxes of criminal files.

[Archival]: One by one, the boxes are being pulled out. The old files dusted off and the tiny bits of cotton, cloth, and smears tested to see if justice was really done.

Paul Ferrara [Archival]: Clearly there’s going to be more people that we are going to be exonerating. That’s undeniable.

Tessa Kramer: That’s Dr. Ferrara, talking to some reporters, right as the project is getting rolling in early 2006. Within a year, Ferrara retires, and Pete Marone takes his place as director of the lab. Meaning: about 30 years after Pete was hired to clean up the serology department – putting him in the slightly uncomfortable position of overseeing Mary Jane Burton – Pete finds himself overseeing a massive review of her cases. 

Pete Marone: If this is what we need to do to clarify, um, justice, if you will, then that’s what we need to do. You don’t hide anything, you don’t undo things. You don’t, you know, walk away from them because they’re difficult. Would I rather have done this? No!

Tessa Kramer: But they get some grad students to help, and start flipping through case files.

Pete Marone: We went through all 534,000 – I will never forget that number – 534,000 case files.

Tessa Kramer: Now these are not all Mary Jane cases. This 534,000 number includes every case that passed through the lab from the 15 years Mary Jane was there. There’s drug cases, firearms cases, which are not going to have clippings of biological evidence.

There’s cases where the clippings are just totally unusable – they’re moldy or degraded – not viable. There’s cases where no one was convicted – don’t need those…So it’s a process, going through half a million files. Eventually, they get down to a stack of cases that need a closer look.

As the Director of the Department of Forensic Science, Pete gives regular reports to the DFS oversight board including updates on the review of “the Mary Jane files”… 

Pete Marone [Archival]: On the post conviction project, uh, also known as the Mary Jane files, uh, all 534,000 case files have been reviewed…

Tessa Kramer: We got a hold of some recordings from one of these board meetings from 2008.

Pete Marone [Archival]: Of the cases with evidence and a named suspect, the final count is 2,166. But that doesn’t mean that things aren’t going to change…

Tessa Kramer: Over 2,000 cases with viable clippings of evidence, and at least one named suspect …Which again – are not all Mary Jane cases.

Board Member [Archival]: There were other examiners who were retaining–

Pete Marone [Archival]: There were other examiners. There were from all four laboratories. From all the other three laboratories…

Tessa Kramer: When Mary Jane was in charge, she made the rules, so it was standard practice for all the serologists to save clippings.

Pete Marone [Archival]: There were not that many people other than Mary Jane. Not that many other cases. Two or three people. Very few cases.

Tessa Kramer: Just to clarify what they’re doing in this case review…they’re looking for DNA that might prove innocence – that’s basically it. They aren’t checking the original serology work. 

So how this works: while going through this half a million case files, they find a case where there are clippings in the folder. Say, from a semen stain found on a rape victim’s bedspread. They test it and compare it with the DNA of the person convicted. If it’s a match? Probably guilty. If not? He might be innocent. 

No doubt, this was a complicated process. One that needed to be done carefully. And it’s amazing that 13 wrongful convictions were uncovered. The state – people like Governor Warner and Pete Marone – they deserve credit for even undertaking such a daunting project.

But. Looking back today, it’s hard to deny that there were some major issues. The first six exonerations were found before the state’s official review even began. And then it took almost 14 years to find seven more cases.

We heard all kinds of criticisms of the lab’s handling of this project. One former State Senator said it was like pulling teeth to get the lab to deal with this. For hundreds of cases, the results came up inconclusive, and some people wondered if this could partly be because the lab was using cheaper, less accurate DNA tests.

There were complaints that the lab wasted time running DNA on cases where the results really wouldn’t have made any difference, which they might have known if they had accepted help from defense attorneys who were offering to assist pro bono from the beginning.

These are criticisms that Pete has heard before. 

Pete Marone: It’s one thing when everybody is working together to work through it. It’s another thing when every time you do something you’re questioned about, “Why did you do this? Why did you do that?” I mean we had never done anything like this before.

So when we put it together, would you have changed something because of hindsight as to how you processed and everything? Probably. But very few people have ever done it, period. And nobody’s done it to that scale. Nobody. Not then, not now.

Tessa Kramer: Fair enough. But multiple people we spoke to said the people running this project got hung up on administrative details at the expense of people who might be getting exonerated. And that it all came to a head over a particular issue:

Pete Marone [Archival]: We have to get valid addresses. I’m very concerned about sending – well, I’m getting ahead of myself – but I’m concerned about sending out information until we have a valid contact. You just don’t send a report out to an address…last known address.

Tessa Kramer: This would become one of the biggest fights of the whole project. The Department of Forensic Science got totally bogged down in the details of how – even whether – to notify people that DNA had been found in their cases. 

Jon Sheldon: It was almost impossible to discover: Wait, what has happened? Who has been notified? And why is that all a secret? 

Tessa Kramer: That’s coming up after the break. 

– AD BREAK – 

Jon Sheldon: Hi, oh you look all ready. 

Sophie Bearman: I’m Sophie. Nice to meet you.

Jon Sheldon: I’m Jon Sheldon.  

Tessa Kramer: As my reporting partner Sophie Bearman and I were interviewing people about the DNA review, everyone kept telling us to talk to a defense attorney named Jon Sheldon. That’s why we’re at Jon’s house in northern Virginia.

Jon Sheldon: I love podcasts. I listen to them. I don’t listen to crime ones that much because it tends to be, as soon as I start listening I’m like, “Oh they should be doing this.”

Tessa Kramer: Okay – pressure’s on!

Jon Sheldon: What I always want to hear is what’s the worst piece of evidence. What’s the piece of evidence you are having the most trouble explaining?

Tessa Kramer: It quickly becomes clear why everyone said we needed to talk to Jon.

Jon Sheldon: …this is the contorted logic of this cabal that involved the Department of Forensic Science is – they told me they wouldn’t give me these names unless I signed a contract with them. Perhaps I’m breaking my contract now. I don’t know what the punishment is for breaking this contract.

Tessa Kramer: I mean…Jon’s the lawyer here. But, let’s back up for a second. 

It’s 2012 when Jon gets involved in Virginia’s “DNA Testing and Notification Project,” because that notification part isn’t going so well. They have a bunch of people they need to find – people convicted of a crime they may not have committed – about 75 – and so the Project sends up a flare asking for help to a bunch of defense attorneys. Jon raises his hand, because tracking people down is something he does a lot in his work. 

One of his first cases is that of a man named Bennett Barbour. Barbour was falsely convicted of a rape in 1978. He was out on parole by the time that John got his name from the DFS.

Jon Sheldon: I called and I got his aunt or his mother, and they’re like, “Oh, you’re calling about his rape conviction? He’s innocent. He’s going to want to hear from you. What’s your number?” And so he called me back in like half an hour. And I think he was in tears and he was just overwhelmed that evidence of his innocence existed. I think he said, this is the call I’ve been waiting for.

Bennett Barbour [Archival]: Was sitting at home with my wife waiting for the birth of our first born. 

Tessa Kramer: This is Bennett Barbour, talking to reporters about his arrest.

Bennett Barbour [Archival]: They come knocking on my door and said well we have a warrant for your arrest. I’m like, “Huh? For what?” And then they put him in handcuffs and stuff. Took me down to uh James City County Jail in Williamsburg. And uh that’s where my nightmare began.

Jon Sheldon: He had spent five years in prison. Five years that he described as  “a nightmare.” This is not somebody that was involved in crimes. He had a brittle bone disease. He gets injured very easily. He had a very hard time in prison. And now he’s out on the street with a felony conviction for rape, which limits his employment opportunities. So it was a big deal to him.

Bennett Barbour [Archival]: People look at you funny – look down at you. That’s my life. That’s my name. Me.

Tessa Kramer: On that first phone call, Jon explains that the lab had new DNA evidence that seems to point to Barbour’s innocence. Barbour quickly files an innocence petition, which is granted a few months later…as it would turn out, just in time. He died of bone cancer less than a year later.

It’s tragic that it took until the last year of Barbour’s life for his name to be cleared. What’s infuriating is that the lab had that evidence for almost two years.

[Archival]: DNA analysis showed another man, a convicted sex offender, was actually responsible for the crime. The lab notified the Commonwealth’s Attorney, who sent a letter to Barbour and to the victim, but those letters were returned. Barbour is skeptical. Surely, with a little effort, they could have found him back in June of 2010.

Bennett Barbour [Archival]: I live not too far from there. You know, like 20 minutes away. My family been living here for – hoo, uh – 70, about 75 years.

Jon Sheldon: Really smart people tied themselves in knots trying to figure out whether to notify people that the evidence of their innocence exists. “It’s not our job,” they said. “Maybe they don’t want to know,” they said. Things that you just can’t believe that grownups would say. Pete Marone would say things like it’s not our job. Maybe they don’t want to know. His big one was they have privacy concerns. Well, you’re notifying them.

Tessa Kramer: The upshot of all this squabbling over privacy concerns? Jon believes there are people – like Barbour – who could have been exonerated years sooner, and others who may never have gotten the chance to clear their names at all.

Jon Sheldon: There are undoubtedly people who now are foreclosed to testing because they have been scared away from all of this. Remember that they started by sending law enforcement letters saying, “We have material of yours that we could test to see if you’re guilty of a crime.”

Tessa Kramer: In fairness, the letters say new evidence could be tested to see whether you are guilty or innocent, but Jon’s criticism here is that the letters scared people off. When Jon got involved he started making phone calls. 

If you think about it from the point of view of someone who had a conviction – maybe they are out of prison, it’s in their past – the idea that new evidence has just turned up, ready to be tested – they may not have had a lot of trust in the people testing the evidence and reaching out from the state of Virginia…the people who had put them away in the first place.

Jon Sheldon: I mean what defendant who – remember we’re looking for people who are wrongfully convicted – if you’re wrongfully convicted and you get a letter from the government, from law enforcement, saying, “We have stuff we could test to see if you’re guilty of a crime,” what do you think your answer is going to be?

Tessa Kramer: Was the state really prioritizing the people who were most impacted here?

Jon Sheldon: The Department of Forensic Science and whatever group made decisions I think put far too much weight on privacy and the government or their own liability.

Tessa Kramer: And Jon’s like, “Okay, what’s with the whole cloak-and-dagger routine?”

Jon Sheldon: Why can’t we find out what is going on and who is making decisions? It was almost impossible to discover: wait, what has happened? Who has been notified? And why is that all a secret? And it was very strange about what you need to be secretive about.

Do you care about the state’s liability? Think about your individual liability? Because this isn’t making any sense to me. You’re a state agency, shouldn’t you just open your books and say here it is? And uh, their decisions were confounding – and they continue to be – and we never got to the bottom of that.

Tessa Kramer: Maybe part of the answer lies in the fact that people in the lab – people who were involved in this project from the get-go – knew that the scientist who had saved these bits of evidence had a history of shoddy work. Work that ultimately got her pushed out so the lab could get accredited. Maybe that contributed to the foot-dragging, the secrecy, and the resistance to outside help.

After almost 14 years – and six million dollars – poured into this project, it’s still not clear: out of all the cases Mary Jane ever worked, how many actually got a thorough second look? All the caginess around the project makes me think that there were probably many cases that never did. 

Candace Rondeaux: So the project itself – it is not wrong to say that it was a bit too little too late. And the whole approach to the commission was anti-scientific in some ways, right? It was so politicized. And I always had the sense that the people leading the commission didn’t really want to ask the much harder questions

Tessa Kramer: Candace Rondeaux is a former Washington Post reporter who covered the first few years of the DNA review.

Candace Rondeaux: Crime is an ecosystem. It’s super personal and it’s very hard to find a sense of resolution, particularly in the case of a violent crime. It’s even harder when the state fails to examine its own practices and its own investigative techniques.

Tessa Kramer: The state did not investigate its own practices or its investigative techniques. They ran DNA testing on the evidence that was viable to test, notified people that they managed to track down…but they did not ask the harder questions: How did these people get wrongfully convicted in the first place? What role did the original serology work play in those convictions?

Next time, we are going to ask those questions. We’re going to take a close look at one of the 13 exoneration cases. A case that is a really good example of what the state might have uncovered, if only they’d asked.

(Admissible theme plays)

–CREDITS– 

Admissible is produced and hosted by Tessa Kramer. Our executive producer is Ellen Horne.

Original reporting by Tessa Kramer and Sophie Bearman, with additional reporting by Ben Paviour and Whittney Evans. Our editor is Danielle Elliot, with additional editing by Ellen Horne.

Our production team is Dana Bialek, Chloe Wynne, Gilda di Carli, Leslie Neigher, Kristin Vermilya and Kim Nederveen Pieterse.

Gavin Wright is VPM’s Managing Producer for Podcasts. Meg Lindholm is the Director of Podcast Production. 

Sound design and mix by Charles Michelet. Music by Del Toro Sound and Story Mechanics, and with additional music by APM. Our theme music is by me, Bryan J. Howard of Del Toro Sound. 

Admissible, season 1: Shreds of Evidence is produced by Story Mechanics and VPM, Virginia’s home for public media. We are distributed by iHeart Media.