COMMONWEALTH OF VIRGINIA|
CITY OF VIRGINIA BEACH
VIRGINIA BEACH, VA 23456
SECOND JUDICIAL CIRCUIT
June 24, 1997
Re: Commonwealth of Virginia v. Joseph R O'Dell, Criminal DocketNo.: 11,413
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
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
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
Ms. Baldwin is to submit an endorsed order reflecting the Court's ruling.
Frederick B. Lowe
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