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.

TIMES STAFF WRITER

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.

Gray, now 46, spent 20 years in prison for the rape and stabbing of a 58-year-old Alton, Mo., woman, who identified him as her attacker during a trial in 1978. However, DNA testing that was unavailable 20 years ago revealed that semen stains on the victim's bed did not come from Gray or her husband. That evidence convinced a judge last year to order a new trial for Gray, and prosecutors said this summer that they will not retry him.

That is an easy case, said Chris Asplen, an assistant U.S. attorney. Most cases of inmates long since convicted, however, will fall into what he calls "the gray area in the middle" where defense lawyers and prosecutors may disagree about whether DNA test results alone can eliminate any possibility that the inmate committed the crime. "That is going to be a matter that's going to be hammered out in the individual jurisdictions," Asplen said. "You are going to see more and more cases like that in court."

Anticipating such cases, U.S. Atty. Gen. Janet Reno appointed a special commission to study the issue. A draft of the report on post-conviction testing by the National Commission on the Future of DNA Evidence, which will be released next month, urges the nation's prosecutors to agree to DNA tests whenever such procedures could provide clear-cut exoneration of convicted inmates. The guidelines also urge defense attorneys not to clog the courts with appeals based on DNA tests that have no chance of clearing their clients.

"What the commission has done is created an approach that allows the justice system to be adversarial where it needs to be rather than just where it can be," said Asplen, who is the commission's executive director.

Most states impose strict time limits on when lawyers can use new DNA evidence to move for a new trial. In 33 states, petitions for new trials have to fall within three months of conviction. Only Illinois and New York have laws that require the state to honor an inmate's request for a DNA test, which takes about five days and costs about $100. Some states, such as Florida and Virginia, traditionally have been more reluctant to allow or pay for post-conviction DNA testing.

California Prosecutors Said to Be Cooperative

In California, there is no time limit on appeals, but prosecutors tend to cooperate with defense attorneys to determine if new evidence would change a verdict.

"Prosecutors in California haven't taken as hard a line as they have in some other states," said George Woody Clarke, a deputy district attorney in San Diego. "Because we don't have statutes that put a time limit on a person bringing a new trial, we tend to look at the cases a little more openly than in states where they have time limits."

Genetic testing will be routine in criminal cases, Clarke predicted. "As this technology develops and as time goes by, we're going to see these cases resolve themselves before trial," he said.

Some experts said they doubt that DNA will clear many prisoners. For one thing, courts place a premium on the finality of cases, making prosecutors reluctant to admit mistakes or retry resolved cases, legal observers said.

"Being able to use DNA to prove you're innocent is not grounds for an immediate release from prison," said William Schroeder, a law professor at Southern Illinois University at Carbondale. "The courts follow a certain process, not justice. Justice is something you get in the next life."

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