Brumfield: Sweet 16

electric_chairVirginia now has 16 reasons to end the death penalty.

On April 8, after 33 years in prison, Keith Allen Harward left a free man, exonerated by DNA evidence in the September, 1982 murder of a Newport News man and the rape of his wife. DNA testing has proved the crime was committed by Jerry Crotty, another former sailor on the aircraft carrier USS Carl Vinson at the time. Crotty was convicted of abduction in 2002 and died in an Ohio prison in 2006.

The Innocence Project in New York, and Skadden Arps, who investigated and litigated this case for many years, exposed the Commonwealth’s faulty forensic science – including the misidentification of teeth marks on the victim – that was a direct contributor to Harward’s mistaken conviction and sentencing.

Harward wrongfully served time for the murder of Jesse Perron, a shipyard welder, and the sexual assault of Perron’s wife, Teresa. The night of September 14, 1982, an intruder broke into the Perron’s Newport News home, where they and their three children slept. Teresa testified she was awakened by the intruder at her bedside striking her husband on the head with a crowbar. The assailant pulled her to the floor and pinned her while continuing to strike Jesse with the crowbar until he was unconscious. During the subsequent hours-long sexual assaults, the assailant bit Mrs. Perron on her legs, leaving multiple visible bite marks that became key evidence in the trial.

City Police and Naval investigators concluded Harward was the culprit after an 8-month long investigation. At the October, 1983 trial Teresa Perron could not positively identify Harward as her assailant because the house was too dark, but two forensic odontologists testified the teeth marks on Mrs. Perron were Harward’s.

A Newport News jury delivered a verdict of guilty of capital murder, robbery, sodomy and rape but Harward escaped the electric chair. In 1985, the Virginia Supreme Court ruled that he could not be tried for capital murder in the commission of this particular rape because the rape victim was not the murder victim. He was tried again in 1986, convicted of first-degree murder and again sentenced to life plus 65 years. An appeal to the Virginia Court of Appeals in 1988 upheld that sentence.

“We are unpersuaded by Harward’s argument,” wrote the Court on January 19, 1988 in upholding the ruling. “There exists no evidence in the record tending to prove that someone other than Harward murdered Jesse Perron. Finding the circumstantial evidence sufficient, we affirm the conviction.”

But everybody got it wrong.

Keith Allen Harward joins a heartbreaking list of 16 “criminals” convicted and sentenced in Virginia courts between 1979 and 1989 to be exonerated decades later by DNA evidence. While most of those convictions were victim misidentification, more alarming is that nine of the 16 were also convicted on “improper or invalidated” forensic science. This begs serious questions of the methods and motives of the Department of Forensic Science during that time period.

In fact, in 2005 Governor Mark Warner initiated tests of biological evidence kept in department case files, including that of a retired analyst named Mary Jane Burton, who for no reason in the pre-DNA days of 1979 through 1988 attached a small swatch of biological material in the files instead of returning it to the appropriate authorities for destruction. This quirk has enabled recent DNA testing in cases where all the other evidence has been destroyed, leading to several exonerations, including that of Thomas Haynesworth, who served 27 years of a 75-year sentence for rapes he did not commit, and Marvin Anderson, a Hanover man who served 20 years of a 210 year sentence for a rape and abduction he never committed.

Earl Washington spent 16 years in prison, including 9 years on death row for a murder and rape he never committed. In fact, Washington was less than two weeks away from execution before he was exonerated by DNA.

“The exoneration uncovered terrible forensic misconduct that contributed to Harwards conviction, including by the same forensic analyst who got the blood typing wrong in DNA exoneree Troy Webb’s case,” said University of Virginia Law Professor Brandon L. Garrett in a recent email. “We need a full-scale audit of flawed forensics in Virginia to assess just how many people like Harward might still need their names cleared decades later.”

Of course, if any wrongfully convicted persons have been executed, then by Virginia law all evidence has been destroyed and their innocence has died with them.
While it was encouraging to see Attorney General Mark Herring process the Harward release quickly, Governor Terry McAuliffe should now order even more audits into previous cases examined by the Department of Forensic Science.

Virginia needs to fix this forensics embarrassment once and for all, and it can start with a moratorium on the death penalty to ensure an innocent person does not die mistakenly because of its own department’s questionable work.

Dale Brumfield is an author and digital archaeologist in Doswell. He can be reached at [email protected]

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