Academic journal article Vanderbilt Law Review

Assessing the Risk of Executing the Innocent: A Case for Allowing Access to Physical Evidence for Posthumous DNA Testing

Academic journal article Vanderbilt Law Review

Assessing the Risk of Executing the Innocent: A Case for Allowing Access to Physical Evidence for Posthumous DNA Testing

Article excerpt


On February 5, 1985, Helen Schartner was raped and murdered on her way home from a bar in Virginia Beach.1 Joseph O'Dell was at the same bar that night, and fellow patrons claim he left the bar shortly after Schartner departed.2 Several hours later, O'Dell was seen entering a convenience store with blood on his hands, face, and clothes.3 O'Dell's estranged girlfriend-who had previously falsely accused O'Dell of other murders-read about Schartner's murder and called the police to report that O'Dell had left some bloody clothes in her garage.4 The police arrested O'Dell and charged him with the rape and murder of Schartner.5 He was tried, found guilty, and sentenced to death.6

O'Dell's 1986 conviction rested primarily on the testimony of a state forensic expert who claimed that the blood on O'Dell's shirt and jacket was "consistent" with that of Schartner's.7 Because DNA IMAGE FORMULA6

testing was not widely available in the mid-eighties when O'Dell was tried,8 the expert relied solely upon a rudimentary blood analysis, which compared proteins and enzymes.9

O'Dell consistently maintained his innocence, claiming that on the night of the murder he had gotten into a fistfight after leaving the bar,10 and the blood on his clothing came from this fight, rather than from any assault upon Schartner.11 DNA tests performed on O'Dell's shirt in 1990-four years after his conviction-- proved that the blood on his shirt did not come from Schartner.12 The tests were inconclusive with respect to the blood on O'Dell's jacket.13 While his case was on appeal, O'Dell gathered additional evidence of his innocence. At trial, the state had presented the testimony of Steven Watson, a jailhouse informant who claimed that O'Dell confessed to Schartner's rape and murder while the two shared a jail cell.14 In 1996, Watson gave a statement under oath in which he admitted that his trial testimony was false and that O'Dell had, in fact, never confessed to him.15

In 1997, O'Dell requested that additional DNA tests be performed on semen samples recovered from the victim.16 Earlier attempts to test this evidence had been unsuccessful; however, recent advances in DNA technology now made it possible to perform DNA testing on the small amount of genetic material in the sample.17 IMAGE FORMULA8

These additional DNA tests, O'Dell argued, would provide him with an opportunity to prove his innocence conclusively.18 The state attorney general, the governor, and the state and federal courts all refused to permit the testing.19 As a result, Joseph O'Dell was executed on July 23, 1997.20

Convinced that O'Dell was wrongly executed, a team of lawyers, religious leaders, and death penalty opponents sought access to the body fluid evidence, so that DNA testing could finally be performed.21 It was too late to spare O'Dell's life, his advocates admitted,22 but not too late to expose the faulty system that had allowed his execution.23 The Roman Catholic Diocese of Richmond and the Louisiana Crisis Assistance Center jointly filed suit in the Circuit Court of the City of Virginia Beach asking the court to donate the samples to them for testing.24 The Diocese's claim relied on both the common law right of access to judicial records25 and a Virginia statute that gives trial court judges discretion to donate evidence in criminal cases to charitable organizations upon completion of all proceedings.26

The Commonwealth "vehemently opposed the petition" and asked the court instead for permission to destroy the evidence.27 The Commonwealth warned that if the test results showed O'Dell's IMAGE FORMULA10

innocence "it ... would be shouted from the rooftops that the Commonwealth of Virginia executed an innocent man."28 The Commonwealth also questioned the integrity of the remaining physical evidence,29 arguing that the authorities had not maintained a proper chain of custody over the evidence during its many years in storage. …

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