May 7, 2005 Lab's Errors in '82 Killing Force Review of Virginia DNA Cases By James Dao A sharply critical independent audit found Friday that Virginia's nationally recognized central crime laboratory had botched DNA tests in a leading capital murder case. The findings prompted Gov. Mark Warner to order a review of the lab's handling of testing in 150 other cases as well. Among the auditors' eight recommendations, all of which were accepted by Mr. Warner, were that the governor restrict the work of the lab's chief DNA scientist, Jeffrey Ban; review 40 cases that Mr. Ban has handled in recent years, along with a sample totaling 110 additional cases; and develop procedures to insulate the lab from any outside political pressures. Experts said the findings could lead to a re-examination of scores of past prosecutions, including those involving some of the nearly two dozen inmates on Virginia's death row, and might also throw into turmoil many current prosecutions in which the lab's work helped identify or rule out suspects. ''You have to have doubts about the reliability of any case coming out of there,'' said Betty Layne DesPortes, a criminal defense lawyer from Richmond who heads a legal panel for the American Academy of Forensic Science. ''How can we be sure that this case wasn't typical?'' she said of the handling of evidence in the prosecution of Earl Washington Jr. The governor called for the independent audit of the lab last fall in response to the case of Mr. Washington, a retarded man who came within days of execution for a rape and killing before DNA evidence, though not resolving the case, did raise doubts about his guilt. The audit's findings come at a time when DNA is growing in importance in implicating and exonerating suspects. Forensic labs in several states, including Oklahoma and Texas, have come under intense scrutiny for their mishandling of that and other evidence. The outside auditors, from the American Society of Crime Laboratory Directors, found that the Virginia lab's internal review process was flawed. They also raised concerns that lab workers had felt pressured by their superiors as well as the office of Jim Gilmore, who was governor when a flawed test of newly discovered DNA was conducted in 2000, to produce quick and conclusive reports in the Washington case, even when the evidence was muddled. ''Pressures from outside the laboratory and excessive managerial influence from within the laboratory,'' the report said, ''had a detrimental effect on the analyst's decisions, examinations and reports in this case.'' In an interview, Mr. Gilmore, a death penalty supporter now in private law practice, said that while he had ''demanded all the proper evidence we could get,'' he had never asked the lab to reach any particular conclusion. Virginia has executed more people, 94, than any other state except Texas since the Supreme Court allowed reinstatement of the death penalty 29 years ago. Mr. Washington was initially sentenced to death for the 1982 rape and fatal stabbing of Rebecca Williams, a 19-year-old mother from Culpepper, Va., but the sentence was commuted by Gov. Douglas Wilder in 1994. He was then pardoned by Mr. Gilmore in 2000 because of DNA evidence that raised doubts about his guilt. But because of mistakes in the DNA tests by the crime lab in 1993, his lawyers assert, he stayed on death row seven years longer than necessary. And additional botched testing in 2000, they say, is the reason he has never been fully exonerated. ''This laboratory touts itself as the best state lab in the country, yet it generated these wrong test results in a capital case twice,'' said Peter Neufeld, a lawyer for Mr. Washington who is co-director of the Innocence Project. ''This case raises very serious questions about the legitimacy of the capital justice system.'' Mr. Washington, 45, is living in a home for the mentally retarded on Virginia's Eastern Shore. When he was told Friday afternoon about the audit's findings, he said he hoped he would now be officially declared innocent in the Williams murder, Mr. Neufeld said. Mr. Ban, a nationally recognized forensic scientist who has helped other states develop DNA policies, trained many members of the Virginia lab's staff. As a result, the auditors recommended that independent experts review tests by other analysts there involving low levels of DNA -- the type of evidence used in the Williams case -- to ensure that similar problems were not rampant at the lab. The audit found an array of problems in the way Mr. Ban had conducted and analyzed DNA tests in the Williams case. Those mistakes caused him to conclude incorrectly that a convicted serial rapist named Kenneth Tinsley was not the source of semen found in Ms. Williams, even though he had been found to be the source of DNA on a blanket at the crime scene. But a test commissioned by Mr. Washington's lawyers in 2004 pointed to Mr. Tinsley as the likely sole source of the DNA found in Ms. Williams. Had the state lab come to the same conclusion, Mr. Washington's lawyers claim, Mr. Tinsley would have been prosecuted for the Williams murder years ago. He never has been, though Mr. Neufeld said he was now imprisoned in an unrelated rape case. The Virginia legislature enacted a law this year that makes the Division of Forensic Science, which runs the central crime lab, an independent state agency and creates an advisory board, made up in part by division employees, to help oversee its work. But Mr. Neufeld said the legislation did not go far enough because it did not create an entirely independent office to review the lab's work. ''The audit provides compelling evidence that crime labs can't police themselves,'' Mr. Neufeld said. Paul B. Ferrara, the director of the Division of Forensic Science, who in the past refused to acknowledge any errors in the Washington case, declined to be interviewed. But in a statement, he said the audit ''belies the major body of other work'' by Mr. Ban that helped lead to Mr. Washington's pardon. Ms. DesPortes, of the forensic science academy, criticized Mr. Ferrara for what she described as his failure to shield Mr. Ban from ''typical'' political pressure on crime labs. She said his response to the audit suggested that he would not vigorously carry out its recommendations. ''He seems to think a perfect lab is one where errors never occur,'' she said. ''But errors are going to occur. A perfect system is one that is able to catch its mistakes, and correct them.''