An ongoing review of a former state crime lab analyst’s work uncovered the error.
The ongoing case review of former Virginia lab analyst Mary Jane Burton’s work has identified three criminal cases that should’ve been included in a prior DNA testing project from the 2000s — but were not.
The cases involved evidence that had been saved by Burton, whose serology work has been called into question. The evidence hadn't been tested previously because the commonwealth, while conducting the Virginia Post-Conviction DNA Testing Program, did not realize that any of it had been used to convict someone of crimes.
In 2005, then-Virginia Gov. Mark Warner ordered DNA testing of biological evidence in the remaining archived case materials for certain felony crimes from the 1970s and 1980s — resulting evidence review and testing in over 530,000 case files.
This effort — including pre-2005 testing in five cases — ultimately led to the exonerations of 13 individuals.
Linda Jackson, director of the Virginia Department of Forensic Science, told the Crime Commission on Tuesday that finding the three missed cases “was not expected.”
These cases have been expedited for DNA testing, though it’s unclear when the results will be available.
The Department of Forensic Science denied a VPM News request for the names of defendants and said DNA results would only be shared with parties in the cases. In an email to VPM News, an attorney with the agency cited discretionary authority to withhold the names.
“While DFS has previously provided historical case file information to VPM in its discretion, with the current case review in progress, DFS will again be limiting access to these files to the parties and those that have been provided access under the budget language,” lead attorney Amy Jenkins wrote to VPM News in an email.
State Sen. Scott Surovell (D–Fairfax), who is also vice chair of the Virginia State Crime Commission, said it’s disappointing that mistakes would continue to be made on something as fundamental as determining whether an innocent person has been incarcerated for years.
“Hopefully, we’ll avoid any kind of thing like that ever happening again,” Surovell told VPM News.
In one of the cases, the conviction hadn’t been recorded in the judgment book at the court, Jackson said Tuesday.
Jenkins said in a recent meeting that the other two cases were missed during the early 2000s project because “the jurisdiction was misidentified” — meaning that the wrong court was contacted to confirm whether or not someone had been convicted there.
She added that DFS assumed the jurisdiction where the convictions occurred was the same as a Virginia State Police office address, “when, in fact, it was another jurisdiction we should have queried in order to get that information.”
That’s because area offices for state police can cover multiple jurisdictions. Up to 20 localities also fall under a "division" office.
According to Jenkins, the Department of Forensic Science has asked state police to review all of these older cases in which they were listed as the investigating law enforcement agency. The department has also requested VSP share information with it about where the crimes occurred — and any information about whether or not there was a conviction.
Jenkins said that information will enable either DFS or commission staff to query the appropriate courts to confirm convictions.
A state police spokesperson directed all questions about the case review to DFS.
The review of cases involving lab analysis conducted by Mary Jane Burton was ordered by the General Assembly earlier this year following the VPM podcast Admissible: Shreds of Evidence, which investigated the quality and accuracy of her lab work. It's unclear what, if anything, will happen with these cases after testing is complete.
Burton died in 1999. The Crime Commission is still working to determine the number of people impacted by her work.
1 of 12 — Jackson,wearing a blue sports coat gices remarks at a podium
Linda Jackson, Director of the Department of Forensic Science, gives a presentation during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
2 of 12 — Jackson,wearing a blue sports coat gices remarks at a podium
Linda Jackson, Director of the Department of Forensic Science, gives a presentation during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
3 of 12 — Sen. Surovell, a white man with small glasses, a head full of hair, blue suit, gives remarks as Sen. Lucas, a black woman with white/gray hair and red top
Sen. Louise Lucas, D-Portsmouth, listens as Sen. Scott Surovell, D-Fairfax, Vice Chair of the Commission, asks questions to Linda Jackson, Director of the Department of Forensic Science, during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
4 of 12 — Jackson,wearing a blue sports coat gices remarks at a podium
Linda Jackson, Director of the Department of Forensic Science, gives a presentation during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
5 of 12 — Arrington gives remarks in front of the commission
Christina Barnes Arrington, a Senior Methodologist at the Crime Commission, gives a presentation during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
6 of 12 — Arrington walks away after giving remarks
Christina Barnes Arrington, a Senior Methodologist at the Crime Commission, walks away after giving a presentation during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
7 of 12 — Leader Gilbert, a white man with a bald head, speaks as Speaker Scott, a bald black man, wearing a blue suit, listens
House Minority Leader Todd Gilbert, R-Shenandoah, gives remarks as Speaker of the House Don Scott Jr., D-Portsmouth, listens during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
8 of 12 — People sit behind their name plates during a meeting
House Majority Leader Charniele Herring, D-Alexandria, left, listens along Kristen J. Howard, Executive Director of the Crime Commission, and House Minority Leader Todd Gilbert, R-Shenandoah, right, as Speaker of the House Don Scott Jr., D-Portsmouth, second from right, gives remarks during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
9 of 12 — Sens. Lucas, Surovell and Del. Harring listen
Sen. Louise Lucas, D-Portsmouth, listens along Sen. Scott Surovell, D-Fairfax, and House Majority Leader Charniele Herring, D-Alexandria, as Jacob M. Lubetkin, Attorney at the Crime Commission, gives a presentation during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
10 of 12 — Hatchett gives remarks at a podium as Lubetkin listens
Jacob M. Lubetkin, Attorney at the Crime Commission, listens as Juliet Hatchett, Director of the Innocence Project Clinic at UVa., gives remarks during a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
11 of 12 — Leader Herring walks with a binder as they chat with a staff member
House Majority Leader Charniele Herring, D-Alexandria, chats with a staff member following a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.
Shaban Athuman / VPM News
12 of 12 — Speaker Scott waves
Speaker of the House Don Scott Jr., D-Portsmouth, waves as he leaves following a Virginia State Crime Commission meeting on Tuesday, October 22, 2024 in Richmond, Virginia.