June 24, 1997

VIA FACSIMILE
Re: Commonwealth of Virginia v. Joseph R O'Dell, Criminal DocketNo.: 11,413

Dear Counsel:

This matter comes before the Court on defendant Joseph R. O'Dell's motion to release evidence currently stored in the clerk's office of this Court for further DNA testing. Counsel for the defendant and the Commonwealth both presented argument. Neither presented testimony or any evidence in support of their respective arguments.

A brief background of this case reveals that it was tried in September of 1986. Formal sentencing took place on November 13, 1986. Since that time it has proceeded through various stages of appeal in both the State and Federal Courts. At this time the parties apparently agree that all avenues of appeal have been exhausted. The Court has carefully reviewed the memoranda, affidavits and arguments presented and has reviewed the files pertaining to the defendant's trial, the appeals thereof as well as his habeas corpus proceedings.

The defendant is petitioning the court to have certain physical evidence tested and/or retested by a laboratory. The Commonwealth argues that the defendant has already had his opportunity when the evidence was tested in 1990 following a similar request made by the defendant at that time. The defendant argues that this request is not for the purpose of appeal or of postponing an execution of sentence but merely for the purpose of petitioning the Governor for executive clemency.

At first blush, this request seems straightforward and innocuous. However, two issues concern the court in reviewing the defendant's request. First, the defendant has already been afforded the opportunity for independent DNA testing. Second, the reliability of any evidence tested at this stage of the proceedings would not meet judicial standards.

The defendant was afforded the opportunity in 1990 to have all of the evidence tested for DNA. The defendant, through counsel, was allowed to handle the evidence and send all or any part of the evidence to Life Codes, an independent laboratory, for testing. That testing was reviewed by the United States District Court, the United States Court of Appeals for the Fourth Circuit and the United States Supreme Court during the defendant's Habeas Corpus proceedings. Each Court found the defendant's claim of innocence based on DNA testing to be incredible.

The defendant asserts and indeed the basis for his request is that the testing will be used only for a petition for executive clemency. Clemency, however, is a function of the executive branch of the government. The procedures and evidence required for executive clemency are the responsibility of the Governor's office, not the Court. The Judiciary's first and utmost concern in considering a request of this nature, is the reliability of the results of such a request. The Court must base its decision on rules of evidence. Counsel for the defendant argued that the evidence "was maintained in a vault in the old courthouse in the clerk's office." Thereafter, this very same evidence was transported for the 1990 testing.

Defendant's attorney stated in his argument to this Court, "We put everything in boxes. We did not pick, sort or do anything to it. . . The instructions to Life Codes when I spoke to them -- and that was by phone -- and I don't know if it was Ms. Vining or who -- was very simple. We don't know. Test anything you can test." The current hearing was held at the defendant's request and nothing is available to this Court to substantiate in any way the reliability of this evidence, what was done with it, how it was handled, in whose possession it was maintained: or whether it was or was not contaminated in any way.

It is clear that at this point, the chain of custody and the integrity of this evidence which is over ten years old is suspect to the greatest degree. "[A]uthentication requires proof of the chain of custody, including a showing with reasonable certainty that the item [has] not been altered, substituted, or contaminated prior to analysis, in any way that would affect the results of the analysis." Reedy v. Commonwealth, 9 Va. App. 386, 387 (1990).

If the Commonwealth and the defense were to agree to this procedure thus waiving any irregularities, the Court could and would uphold the agreement. However, the Commonwealth has objected and the Court must rule. In a judicial proceeding the Court must make its decision based on judicial principles. The Court cannot release suspect and possibly tainted evidence for further testing, especially in light of the fact that this same evidence has already been released on a prior occasion which circumstance increases the unreliability associated therewith. To do so would be not only unfair to the Commonwealth in this instance but, indeed, would be also unfair to the defendant.

Therefore, the defendant's request to release evidence for DNA testing is denied.

Ms. Baldwin is to submit an endorsed order reflecting the Court's ruling.

Sincerely,

Frederick B. Lowe