DATE: Saturday, July 12, 1997               TAG: 9707120327

SECTION: LOCAL                   PAGE: B5   EDITION: FINAL 

SOURCE: BY LAURA LaFAY, STAFF WRITER 

DATELINE: RICHMOND                          LENGTH:   64 lines

CONDEMNED KILLER'S REQUEST FOR DNA TESTS DENIED BY ALLEN

Condemned Virginia Beach murderer Joseph Roger O'Dell will be put to death without the DNA tests that he says will prove his innocence, Gov. George F. Allen's office announced Friday.

``Governor Allen is of the opinion that the issue of Mr. O'Dell's guilt is not an open question and that the additional DNA testing he has requested is neither necessary nor appropriate,'' Allen's aide, Mark Christie, wrote in a letter faxed Friday to O'Dell's New York-based lawyer, Robert Smith.

Christie's letter focused on the results of earlier DNA testing on O'Dell's clothing and summarized the non-DNA-related evidence against O'Dell. ``No tests. . . at this point could serve to outweigh the massive amount of additional persuasive evidence of Mr. O'Dell's guilt,'' he wrote.

O'Dell was sentenced to death for the 1985 rape and murder of Helen Schartner outside a Virginia Beach nightclub. DNA tests were performed on his clothing in 1989, but the results - specifically one of a stain from his jacket - have been disputed. The lab, using a now-defunct amplification method, said the stain matched Schartner's blood. Experts called at a federal hearing, however, termed the test results ``inconclusive.''

O'Dell's most recent request is for PCR testing, a new, more sophisticated method that was not available in 1990. This time, O'Dell wants the testing performed on vaginal and anal swabs taken from Schartner's body.

But his efforts to have the swabs released for testing have been thwarted by the Virginia Beach Circuit Court and the Virginia Supreme Court, both of which ruled that the evidence was ``suspect and probably tainted.''

Rejected by the courts, O'Dell turned to Allen, asking for the tests so he could incorporate the results into a last-ditch petition for mercy.

In considering the request, Christie wrote, Allen asked Dr. Paul Ferrara, director of the Virginia Division of Forensic Science, to review the results of the original DNA tests.

Ferrara's review ``corroborated the findings of the. . . test,'' Christie wrote, ``. . . That the blood found on the jacket of Joseph O'Dell matched the DNA-Print pattern from the blood of Helen Schartner, the victim.''

Ferrara also reported that the kind of test used on O'Dell's jacket ``remains the most well-established, validated and accepted form of DNA typing used in forensic science today,'' Christie wrote.

Paul Enzinna, a Washington-based lawyer working on O'Dell's case, disagreed strongly with that contention. In addition, Enzinna said, Christie's letter was ``simply incorrect in a number of critical areas'' regarding the evidence against O'Dell.

``It's hard to tell what's being said here,'' he said. ``They made this decision based on the previous testing, which had nothing to do with the vaginal swabs. The vaginal swabs could not be tested in 1990 because they did not contain enough DNA. But they do contain enough DNA for the PCR testing available now.''

``What reason is there to not test this stuff other than to hide the truth?'' said Enzinna. ``This letter goes hand in hand with that because it says, `Let's not talk about the vaginal swabs. Let's talk about these other tests.' ''

O'Dell's lawyers filed a lawsuit Friday in U.S. District Court in Richmond asking for release of the swabs for testing and a stay of execution pending the results.

O'Dell is scheduled to be executed July 23. ILLUSTRATION: Joseph Roger O'Dell was sentenced to death for a

woman's 1985 murder outside a Virginia Beach nightclub. KEYWORDS: DEATH ROW MURDER RAPE DNA

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