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National Perspective : Courts : Death Penalty Foes Demand New DNA Test for Executed Man : Virginia prosecutors want to destroy the genetic evidence instead. Case dates from 1986, when results were less precise.

August 31, 1999|SAM FULWOOD III | TIMES STAFF WRITER

WASHINGTON — By putting Joseph O'Dell III to death in 1997, legal authorities in the Commonwealth of Virginia were certain that they were ending courtroom battles over the misspent life of a career criminal.

They were wrong.

O'Dell, who was convicted in 1986 of raping, beating and strangling a 44-year-old secretary named Helen Schartner, continues to frustrate state officials from his grave. Convinced that Virginia made a fatal mistake, a team of lawyers, religious leaders and death penalty opponents is seeking access to DNA samples taken from Schartner's corpse. If they prevail, and if the evidence clears him, O'Dell would become the first convict executed by the state who was subsequently cleared by DNA.

Virginia prosecutors, however, say nothing can be gained by new tests. They point out that O'Dell was given DNA tests, albeit less sophisticated ones than are now available, before his trial. And they are pressing to burn the victim's DNA samples, effectively shutting the books on O'Dell's case.

DNA 'Fingerprinting' Likely in Future

The controversy demonstrates the awkward transition that comes with scientific breakthroughs. For more than a decade, state and federal courts have accepted genetic evidence as nearly infallible when used correctly by prosecutors and defense attorneys. DNA, or deoxyribonucleic acid, is contained in all cells and carries the unique genetic markers that scientists believe control the body's physical traits, such as race, sex, hair and eye color.

Within the next 10 years, DNA is expected to be as widely used and universally accepted as fingerprints. But prisoners convicted in the 1970s and 1980s, before DNA testing became easily accessible, are now pressing prosecutors to reopen their cases.

Since the courts first allowed new testing in 1987, 62 prison inmates--some on death row--have been freed because of DNA evidence, according to Justice Department statistics. Few who have seen the evidence in O'Dell's case think it likely that he too will be cleared. And it is possible that new DNA tests could strengthen the Virginia prosecutors' case against O'Dell.

By nearly all accounts, O'Dell seemed hellbent on a life of crime. He was on parole from a Florida conviction for kidnapping and robbery when he was charged with Schartner's murder. During his trial, a great deal of circumstantial evidence pointed to his guilt, including blood and semen stains that were "consistent" with his, based on an early generation of DNA tests.

But questions have lingered since his execution and O'Dell's supporters want to have the DNA evidence collected from Schartner's body retested, using newer techniques that were not available during the trial.

Virginia officials are opposed, saying that they have the right to burn the evidence and end the matter for good. "If we allow [new DNA tests] to occur, then lawyers for every executed inmate would tie up the courts trying to have DNA evidence tested after the fact," said David Botkins, a spokesman for Virginia Atty. Gen. Mark L. Early.

The case has been sent to the Virginia Supreme Court, with arguments to be heard within the next few months. In the meantime, the debate continues over whether states and counties should leave settled cases alone.

Fearing that many people have been sentenced wrongly, a cottage industry of defense lawyers, civil libertarians and death penalty opponents has emerged that wants to use DNA technology to help selected inmates get new days in court.

"The state isn't going out to try and figure if it can vindicate people already in prison," said Lawrence Marshall, director of the National Conference on Wrongful Convictions and the Death Penalty. "Prosecutors aren't going to want to do that because they believe they got the right guy the first time around."

Marshall, a professor at Northwestern University Law School in Chicago, said that he has no idea how many wrongly accused people in prison could use DNA testing to reverse their convictions. But he believes there may be hundreds, he said, judging by the dozens of letters he receives each month.

O'Dell's case, he said, "might well be the first scientifically verifiable case where we've executed an innocent person that could have been avoided with DNA testing."

But prosecutors argued that the system works well to root out those locked up unfairly. In fact, when genetic testing clearly demonstrates that someone in prison could not have committed a crime, as in the case of a Missouri man named David Gray, prosecutors will not stand in the way of freeing an innocent person, they said.

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