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Since 1989, Virginia has led the way for states using DNA evidence to solve violent crimes. But with a backlog of more than 500 cases, finding a match is hardly an open-and-shut case. 

Burden of Proof

You know what they say in the beginning," says Dr. Paul Ferrara.

In the Criminal Justice system the people are represented by two separate, yet equally important groups: the police who investigate crime and the District Attorneys who prosecute the offenders.

He recites the opening lines of the TV drama "Law & Order" with a tinge of sarcasm, stressing what he can explain only as oversight.

"I want to say: No, no, no. There're three," he urges. Ferrara, director of the Division of Forensic Science with the state's Department of Criminal Justice Services, refers to a third group as the unsung arbiters of the criminal justice system — the forensic scientists. Despite Ferrara's insistence, what's getting the credit is only the science itself.

Since 1989, when Virginia established the first state DNA databank for criminal investigations, more than 143 matches, or hits, have been made to link culprit to crime, helping solve violent offenses like rapes and homicides that might otherwise have stayed cold, or taken lifetimes to solve.

More than a decade later, DNA, the genetic fingerprint that can determine with nearly foolproof accuracy whether a suspect is guilty or innocent, is now collected and stored in databanks by all 50 states. Its exactitude has called into question everything from laws on statutes of limitations to privacy issues to the death penalty. But while experts claim its use has revolutionized forensic science, its implementation and application are stalled, even backlogged by three ageless bureaucratic constraints: time, manpower and money.

"In Virginia we've taken DNA for granted," says Dr. Ferrara, the only person to serve on both the National Institute of Justice's Commission on the Future of DNA Evidence created by Attorney General Janet Reno, and an FBI advisory board that sets federal standards for DNA testing. Ferrara acknowledges that while Virginia's laws seem to be up to speed with its science, the system of tracking an offense from DNA samples collected at a crime scene to the forensics lab, where it is logged and analyzed, to court where it can tilt judicial consequence, lags far behind its predicted capabilities.

The state's forensic science laboratories take inventory of 2,000 DNA samples a year. A DNA sample taken, for example, from a cigarette butt collected by a police officer at a crime scene, must first be isolated. Then a genetic profile is developed, and finally the databank is searched for a possible match to one of the 120,00 felons in Virginia's criminal databank. It can take anywhere from weeks to years to find a match.

"We had the first convicted capital case tried on the basis of DNA," recalls Ferrara, speaking of the case of serial killer and rapist Timothy Spencer, who was executed in 1994. "Our history exemplified the power of this technology, but we've still only scratched the surface."

But Ferrara is hopeful the surface will be broken with the help of six newly graduated DNA examiners, hired to help tackle the 500-case backlog that now clogs the system. Ferrara's new staff are just six of 10 positions approved and funded this year by the state, a sizable increase to the 45 forensic scientists already working in DNA units throughout four laboratories. "We've got the capabilities," says Ferrara, "but we're now playing catch-up."

It's a game of catch-up that Richmond Commonwealth's Attorney David Hicks says can't be swift enough. And those responsible include players at all levels, from the local police to the Commonwealth's Attorney's Office to the forensic scientists. "It's still — even 10 years later — in the fledgling stage," says Hicks. His exasperation is evident: "If we're serious about collecting this biological evidence, it has to be collected at the scene," something that, even today, is not always done by police. Sometimes, as Hicks concedes, "we've had it and should have used it."

But often, it seems, there's no time. According to Hicks, nearly 80 percent of the cases his office tries come and go within four months, not always time for the DNA samples to be analyzed before the court date set for the offense. "Because of the backlog of the labs, finding a match may take years because people finally got around to put it in," says Hicks. It's a nightmare he envisions all too often. "Imagine if we had done that sooner, how many criminals we could have caught — possibly before they committed the offense."

But Dr. Ferrara contends the 500-case back log is something his office is working overtime to control. If no backlog existed, DNA evidence could be tested, entered into the databank and matched with a suspect in the system in as little as a week. "Our goal is to get an average turnaround of 30 days," insists Ferrara, claiming the forensics division will meet the goal by the end of the year.

Today, DNA evidence is used only in felony cases, and the databank contains only the genetic fingerprints of felons convicted since 1993. But Virginia is one of only five states to take DNA samples from all felons. And, says Ferrara, it's this inclusion of nonviolent felonies like breaking and entering that has led to half of the 38 hits its databank has made this year. Ferrara suggests there's a whole new spectrum of nonviolent crimes such as drug offenses and property crimes that can be solved from DNA evidence when it is collected and analyzed properly. But until the forensics division can eliminate its backlog, other criminal DNA uses remain only possibilities.

Hicks argues its use is controlled by funding, namely what agency will pick up the $50-per-case tab — the police or the courts. "What price tag do you put on doing a thorough investigation?" Hicks believes it's this lack of money that makes DNA use stuck in its early stages of development. "Not to sufficiently fund its use is to have an incredible tool and waste it."

But Ferrara says funding is not the problem. Instead, it's an expense the state must continue to ante up because it can't afford to pass on what, he says, is a veritable bargain. With an estimated cost of $50 per sample, and an average of 20,000 DNA samples collected each year, Ferrara distills the results: "At [the budget of] a million dollars a year, when you consider what that buys you in terms of solving crime, it's cheap."

"Of the 143 crumbs we've put away, I think of how many victims won't be victims because of this kind of technology," says Ferrara. And of those wrongly convicted in Virginia that DNA evidence has helped to exonerate, Ferrara can only count on his fingers and wonder — "Earl Washington, Eric Honaker." So far, only two have been identified.

It's something that tugs at Hicks as well. "It's my number one nightmare," he says of the cases where new DNA evidence has proven an innocent person was sent to prison, possibly even death row.

But for Hicks, the fingers he counts have different names — "Andrew Graham, Christopher Goines, Eric Payne and Derek Walker." He looks at his hand as he remembers the date that each execution took place. The DNA evidence in these cases, Hicks assures, was infallible proof. Still, he adds, "Until the DNA evidence came back, my heart was in my
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