Roman Catholic Diocese of Richmond, Virginia
AND
Louisiana Crisis Assistance Center, Petitioner,

V.

J. Curtis Fruit, Clerk

Circuit Court of the City of Virginia Beach, Respondent.
Docket #: CL98-122
COMMONWEALTH'S RESPONSE TO PETITION FOR DONATION OF CERTAIN ITEMS

The Commonwealth of Virginia, by Chief Deputy Commonwealth's Attorney Albert D. Alberi, hereby offers the following response to petitioner's request for donation of certain items of evidence:...

4. Petitioners' synopsis of the facts in paragraph 4 of their pleading is inaccurate, incomplete and distorted. The Commonwealth relies on the synopsis of the fact stated by the Forth United States Circuit Court of Appeals in O'Dell v. Netherland, 93 F.3d 1214 (1996)...

5. Prior to his execution and in pursuit of executive clemency O'Dell did in fact make a request for the release of certain items of evidence for the purpose of DNA testing. This request was denied by the honorable Frederick B. Lowe of the Circuit Court of the City of Virginia Beach by letter opinion dated June 24, 1997 (Attachment B), which opinion was further incorporated in an Order dated July 1, 1997 (Attachment C).

6. Notwithstanding petitioner's self-congratulatory claims to be acting in the public interest to enlighten the public and to seek out so-called elected officials and agencies who "cover their tracks", it was Joseph Roger O'Dell and his counsel who engaged in acts of duplicity with the public and the courts. On August 16, 1988, O'Dell wrote the Honorable H. Calvin Spain, of the Circuit Court of the City of Virginia Beach (Attachment D). In that letter O'Dell declared "LifeCodes has an impeccable reputation and is used by police departments and prosecution offices all over America..." As a result of O'Dell's request, virtually all of the evidence was released by the Circuit Court Clerk to LifeCodes for further DNA testing. Results of that testing were disclosed to O'Dell's counsel on August 21, 1990 (Attachment E). Notwithstanding the fact that LifeCodes found that the blood on the blue jacked matched that of Helen Schartner, O'Dell's counsel consciously chose to supress that report. Robert S. Smith, O'Dell's attorney, admitted this on June 12, 1997 (Attachment F, excerpt of transcript). In habeas corpus proceedings before the Circuit Court of the City of Virginia Beach, O'Dell presented only a small excerpt from the LifeCodes' DNA Testing concerning a blood spot on O'Dell's shirt. O'Dell's counsel essentially offered the Circuit Court the same characterization of the evidence as petitioners have offered the Court now in paragraph 4 in their pleading. Nearly three years after LifeCodes' report was placed in their hands, O'Dell's counsel finally revealed the full report to the Attorney General of Virginia (Attachment G). Having touted LifeCodes as one of the finest DNA laboratories in the country, O'Dell's counsel then reversed their course and proceeded to attack LifeCodes' findings of a DNA match between Helen Schartner's blood and the blood stains on O'Dell's jacket! Fortunately neither the United States Court of Appeals nor the United States Supreme Court were fooled by this duplicity.

7. The Commonwealth is unaware of exactly what petitioner's strong interests are. Given the fact that the Fourth United States Circuit Court characterized the evidence against O'Dell as "vast", "a mountain of evidence", and "overwhelming", it is difficult to understand what the societal interest is in further proceedings. Again, the findings of the Fourth Circuit were confirmed in a full published opinion by the United States Supreme Court. Perhaps most importantly, the Commonwealth invites this Court's attention to the findings of Judge Lowe in his letter opinion of June 24, 1997, wherein he comments specifically about the poor state of packaging of the items of evidence now sought by petitioners. In light of the duplicity with which O'Dell previously handled the first round of DNA testing and in light of the poor state of packaging of the evidence, there is little that can be accomplished with further DNA testing.

WHEREFORE, the commonwealth requests that the Court deny petitioner's request for donation of evidence and direct the Clerk of Circuit Court to dispose of the items sought by petitioners as provided by law to include destruction.

Respectfully Submitted

Robert J. Humphreys
Commonwealth's Attorney