THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, December 4, 1995 TAG: 9512040034
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
LENGTH: Long : 240 lines
The blood-spattered clothing that sent Joseph Roger O'Dell III to death row nearly a decade ago now could be his strongest bid for freedom.
On Tuesday, O'Dell's lawyers will argue in federal appeals court in Richmond that he deserves a new hearing because new DNA evidence casts doubt on his conviction for the February 1985 rape and murder of Helen Schartner in Virginia Beach.
O'Dell is in legal limbo. In September 1994, U.S. District Judge James R. Spencer overturned O'Dell's death sentence and ordered a new sentencing. Spencer ruled that O'Dell's rights were violated because jurors were not told that, if sentenced to life, he would be ineligible for parole due to his past convictions.
But O'Dell's lawyers want more than a new sentencing. They say the new evidence proves his innocence. DNA tests done after O'Dell's conviction challenge the theory painted in 1986 by Virginia Beach prosecutors Albert Alberi and Stephen Test. This summer, O'Dell's supporters argued his case over the Internet; on Saturday, the Internet plea was featured in The New York Times.
Last year, Spencer ruled that the only blood sample still testable showed results different from what came out at trial. But Spencer also ruled that the DNA evidence alone did not justify a new hearing because of other evidence, which included the testimony of a jailhouse informant, a tire track -similar to O'Dell's - found near the victim, and other circumstantial evidence.
Once again, DNA is on trial in Virginia - the first state to develop DNA fingerprinting as a crime-fighting tool and the first in which a man was executed due to DNA evidence. If anything, O'Dell's case has become a mirror of the legal warfare that arises when DNA enters the scene.
O'Dell was sentenced to death by a jury in September 1986 for sodomizing, raping and strangling Schartner. Prosecutors said O'Dell followed the 44-year-old woman outside the County Line bar on S. Military Highway, then forced her into his car. Schartner's battered body was found in a nearby field on Feb. 6, 1985, one day after she disappeared.
Spencer's ruling was the second time since 1991 that a federal judge has seriously questioned O'Dell's guilt. Both times, the state disagreed. Alberi said in a 1992 letter to The Virginian-Pilot that ``Joseph O'Dell is one of the most savage, dangerous criminals I have seen in my 18-year career in criminal justice.''
Commonwealth's Attorney Robert J. Humphreys recently said the DNA tests prove O'Dell was soaked in Schartner's blood. He accused O'Dell's lawyers of lying about the DNA results, a claim disputed by court records and a recent letter from the private lab that performed the DNA tests.
Virginia courts rarely allow new evidence to be presented beyond 21 days after conviction. But federal courts can override this rule if the new evidence makes a compelling case for the defendant's ``actual innocence.''
O'Dell's lawyers will argue their case before the full 13-judge panel of the 4th U.S. Circuit Court of Appeals. It is a conservative court that often has been unsympathetic to death row appeals.
Within the past year, the appeals court overturned stays or resentencings in five death row cases, including that of Dennis Stockton, whose new hearing of evidence was overturned one day after being granted by a federal judge in Roanoke. Stockton was executed by lethal injection on Sept. 27.
But Stockton did not have DNA evidence bolstering his innocence claims. In an angry exchange erupting this summer on the Internet and in The Virginian-Pilot, Humphreys and O'Dell's lawyers have debated the DNA, its meaning, and how it was obtained.
In theory, nothing is more individual than a person's DNA - and this makes its fingerprinting a powerful weapon against crime. The tests rely on the distinctive pattern of a person's deoxyribonucleic acid, genetic material found in every cell. By examining strands of DNA in cells from a smear of blood or semen stain found at a crime scene, scientists say they can tell with near-certainty whether a suspect is guilty.
Virginia has based life-or-death decisions on the technique. Timothy Spencer, the so-called ``Southside Strangler,'' died in the electric chair in 1994 after DNA linked him to the 1987 murder of a Richmond woman. Six months later, Edward Honaker - sentenced to three life terms - was pardoned after serving 10 years. DNA tests ruled him out as the assailant in a 1984 rape.
Like Honaker, O'Dell, 54, was convicted when DNA fingerprinting was not widely used in criminal trials. The key to the prosecution's case came from O'Dell's girlfriend, Connie Craig, who notified police after discovering O'Dell's blood-soaked clothes in her garage the day after Schartner's body was found.
Yet there were problems with this evidence from the beginning, court records show. The clothes were crammed together in a paper bag, allowing the blood on one garment to soak onto another. Detectives pulled the clothes from the bag when they arrived at Craig's house, then crammed them all together again to take to the crime lab.
Afterward, this blood evidence was not preserved, making retesting of the state's findings difficult. One of O'Dell's pre-trial motions was for preservation of the evidence, but state law did not then require this and Circuit Judge H. Calvin Spain overruled the motion.
Tests showed that Schartner had type O blood with several enzyme ``markers.'' A state forensics expert, Jacqueline Emrich, compared the victim's blood to that found on O'Dell's jeans, shirt, jacket and overcoat. Called multi-system electrophoresis, it was the best test then available.
Emrich testified the samples were ``consistent,'' meaning the blood type and enzymes were similar. Schartner's blood was also consistent with blood found in O'Dell's car, Emrich testified.
The state emphasized the similarities, going so far as to dress a mannequin in the bloody clothes during closing arguments. ``The blood on the defendant's clothing is the victim's type,'' Test told jurors. ``No big surprise there. Not when he was feasting on the violence, sitting right over her as he struck her on the head. He would be covered in her blood.''
O'Dell said the blood came from a fight with two men outside an Ocean View bar on the night of the murder. His expert witness, a forensic scientist, testified that the tests were flawed and Emrich's report filled with mistakes. But she could not duplicate Emrich's tests because of the decay that had already set in, she testified.
The jury believed prosecutors, and O'Dell was condemned to die.
For three years after his conviction, O'Dell maintained his innocence in unsuccessful appeals. He asked for a DNA test to prove that the blood on his clothing was not Schartner's.
In August 1989, Judge Spain took an unprecedented step by authorizing the tests. Spain, now deceased, said he was concerned about ``the largely circumstantial case'' against O'Dell. His order that the evidence in a completed case be verified by DNA testing was the first of its kind in Virginia, and possibly in the nation, lawyers said.
Assistant Attorney General Eugene Murphy argued that state courts would bar any new evidence because of the 21-day rule. But Spain wouldn't buy it.
``Somebody's got to . . . address the issue of whether a new trial is appropriate depending upon the results of that DNA,'' Spain said. ``They certainly aren't going to summarily walk someone to the electric chair when there is a question.''
In a recent interview, Humphreys called Spain's handling of the case ``a travesty. . . . The tribute to Al Alberi was that he won that case in spite of everything the judge could do to prevent him from winning,'' he said. ``He and Steve Test did a job in the face of the most incredible incompetence by a jurist that I've ever seen in my life. . . .''
Using $1,200 donated by Percy Ross, the millionaire philanthropist who writes a syndicated column, O'Dell hired Lifecodes Corp., a nationally recognized private lab then in New York. His local attorney, Andrew Sebok, and private investigator C.C. Holmes pack the clothes. The two were surprised by the decayed state of the evidence.
``The evidence was stored in boxes and grocery sacks . . . in the old clerks' building,'' Holmes said. ``The items were so connected with mold we had to pull the stuff apart. I filled up the rear end of an old station wagon with the stuff. Afterward, it smelled like a dead body in there and I had to disinfect the car.''
In August 1990, Lifecodes returned its findings. Most of the evidence was so decayed it could not be tested, Sebok said. This included the blood-drenched jeans. But Lifecodes was able to test O'Dell's shirt and coat. The results from the two samples seemed to contradict each other:
The blood on O'Dell's shirt. The DNA test showed the blood did not match Schartner's, contrary to Emrich's testimony. And, the blood was not O'Dell's. Instead, it belonged to a third person, a finding O'Dell said supported his account of a fight with two other men.
An alternate theory - one that ran like an undercurrent during the investigation - was that O'Dell had an accomplice. But this was never proven and prosecutors never raised it in trial.
The blood on O'Dell's coat. Lifecodes said the DNA matched Schartner's, but added that the match was not exact because of the decayed state of the evidence. The DNA bands had shifted, a phenomenon that occurs when biological evidence decays. Instead of testing a new sample, the lab ran the old one through a controversial radioactive test now considered outdated by the National Research Council, a Washington-based scientific group.
Prosecutors focused on the results from the coat. In June, Alberi said: ``Anyone who says (the tests) exonerate O'Dell hasn't seen the report. According to this test, there was 3-probe DNA match between Schartner's blood and the bloodstains on (O'Dell's) blue jacket.''
But testimony from DNA experts emphasized that the test was flawed and the results from the coat were inconclusive. Spencer agreed.
If anything, the history of O'Dell's DNA evidence after 1990 shows what defense attorneys have called the state's double standard: It readily admits DNA evidence of guilt, but blocks that suggesting innocence.
In 1991, O'Dell appealed to the U.S. Supreme Court. The court refused to hear his case, but three justices raised concerns about the possibility that an innocent man might be executed. They focused on the DNA.
``Because of the gross injustice that would result if an innocent man were sentenced to death, O'Dell's substantial federal claims can, and should, receive careful consideration,'' wrote Justice Harry A. Blackmun, joined by John Paul Stevens and Sandra Day O'Connor.
In response, Virginia Beach prosecutors attacked the honesty of O'Dell's lawyers. ``There's a group of capital litigation attorneys out there who have an attitude that because the death penalty is wrong, everything is fair if it will save someone's life, including lying to the Supreme Court of the United States,'' Humphreys recently said. ``That's what O'Dell's lawyers have done.''
Did O'Dell's lawyers lie?
Beginning in 1991, Humphreys and Alberi attacked the Lifecodes report on several fronts. Alberi filed an affidavit claiming he learned from an unnamed California district attorney that O'Dell's lawyers asked Lifecodes to test in such a way that unfavorable results could be hidden. Humphreys accused the lawyers of failing to send all the forensic evidence to the lab and said that for three years the attorneys refused to hand the DNA results over to the state.
``O'Dell and his lawyers completely fabricated the results of the DNA testing in their brief to the U.S. Supreme Court,'' Humphreys said in a letter published this July in The Virginian-Pilot. In effect, he accused O'Dell's lawyers of perjury.
Court records, however, apparently disprove the prosecutors' claims:
O'Dell's lawyers did not misrepresent the DNA findings, court records show. They emphasized the results suggesting innocence and successfully cast doubt on the results suggesting guilt, but that is the job of a defense attorney. Lawyers in the state attorney general's office have argued the opposite to bolster the trial evidence. That, too, is their job.
The Lifecodes report included an extensive inventory of blood evidence that Sebok sent to the lab, including the clothes of both O'Dell and Schartner and the contents of O'Dell's car.
In addition, a November 13, 1995, letter to O'Dell's lawyers from Michael Baird, director of laboratory operations for Lifecodes, said: ``There was no selectivity in which samples to test, nor was there any request of us to test selectively, other than to test those samples which might yield DNA results.''
Letters between O'Dell's lawyers and the state show that the test results were made available to prosecutors as early as 1990. Prosecutors could have asked to test the Lifecodes results themselves, but never did, records show.
When recently asked to explain some of the discrepancies between his statements and the record, Humphreys answered, ``I was speaking from memory.''
In the end, the arguments apparently had no bearing on Spencer's decision.
As he wrote in his 1994 opinion: ``DNA testing of O'Dell's shirt, performed after he had completed direct appeals, revealed that the blood on that article of clothing could not have come from Schartner.''
Lawyers could debate the result, but one thing was certain. The court had ruled that the only testable DNA yielded results different from the trial evidence - the same evidence that convinced jurors that Joseph O'Dell must die. ILLUSTRATION: Color photo
Joseph O'Dell is in prison for the rape and murder of a woman in
Virginia Beach.
KEYWORDS: MURDER DNA TESTING DEATH ROW CAPITAL PUNISHMENT APPEAL
VIRGINIA by CNB