Earlier this week, a state scientific advisory panel recommended alerting all parties in potentially thousands of past criminal cases involving former state lab analyst Mary Jane Burton.
It’s estimated that Burton analyzed biological evidence in about 10,000 cases during the 1970s and '80s — though it’s unclear how many convictions hinged on her lab work.
“The department doesn't have any way of knowing the number of people who might have been convicted in those 10,000 cases,” said Amy Curtis Jenkins, counsel for the Virginia Department of Forensic Science. “So, that would be something that would have to be individually reviewed.”
The accuracy of Burton’s work came into question following the VPM podcast “Admissible: Shreds of Evidence." The state lab recently reviewed allegations made in the series and its internal review was presented during the Tuesday meeting of a subgroup of the Scientific Advisory Committee, which advises that state’s Forensic Science Board.
The podcast details how Burton was known by colleagues to do subpar work, skip critical control tests, show favor to the prosecution — and even change forensic test results.
“I think we all are feeling that we need to have further investigation,” said Kathleen Corrado, chair of the Scientific Advisory Committee, following a discussion of the allegations presented in the podcast.
Corrado recommended that anyone impacted by Burton’s past lab work be notified about potential forensic testing errors. The specific language of the notification still has to be drafted and is expected to be voted on during an April subcommittee meeting. If approved, it would be presented to the full Scientific Advisory Committee.
“The idea that [the defendants] can request — not just a review of the case, but then if there is evidence, have it retested — to me … it's due diligence,” Corrado said. “If there are any issues — if someone has a concern — it can be looked at. That makes sense to me.”
However, the panel stopped short of calling for a full review of all Burton’s cases Tuesday, following recommendations from Jenkins.
“We have a very limited number of staff members that are still serologists,” Jenkins said. “So, going back and looking at the files themselves … I'm not sure is going to be particularly helpful.”
The subcommittee also discussed a case involving Burton’s lab work that’s currently in active litigation. However, this time, her errors involve an outdated forensic technique called microscopic hair analysis — a practice that was deemed “highly unreliable” in a 2009 report from the National Academy of Sciences.
In 2015, the FBI determined that many of its examiners had overstated hair comparisons using the outdated DNA method and encouraged state labs to conduct similar reviews; at least some of Virginia’s hair examiners had been trained by the FBI.
The following year, the department began a transcript review of some old cases to determine whether a forensic expert testified about a microscopic hair analysis — and if so, whether they overstated the results.
The state lab is not retesting all past cases involving microscopic hair analyses brought into evidence — despite mitochondrial DNA testing now enabling the testing of hairs without their roots. Instead, they’re only alerting parties in cases in which an expert overstated the significance of their hair analysis.
So far, 23 notifications have been made after 49 transcripts were reviewed. A court order is required to re-examine evidence.
“We don’t have a mechanism under code or law to enforce a request [to have evidence retested] … it’s simply a request,” Jenkins said during a recent Forensic Science Board meeting.
But some like Peter Neufeld, cofounder of the Innocence Project, told the panel Tuesday that notification is not enough. He called for retesting any hairs Burton analyzed in her 15-year career, and said the lab should look at the work of other hair analysts, too.
“These cases happened 40 and 50 years ago,” Neufeld said. “A lot of these people are going to be dead. They may be dead because they were executed. They may be dead from natural causes. But nevertheless, they may have been wrongly convicted. Unless you do the testing — if the evidence even still exists — no one's going to know the truth.”
His and other public comments led to another recommendation that the Department of Forensic Science consider all information presented during Tuesday’s meeting — including during public comments — when discussing any further case review and testing.
