There are cases where an inmate proclaims his innocence, but the biological material that could prove it can’t be found. This is not one of those cases. There are cases where the prosecution argues DNA testing should not be allowed because the material to be tested is not tied to the crime. This is not one of those cases.
For William Virgil, convicted of rape and murder in Kentucky in 1987, none of those barriers to testing exist. The evidence is available, and it is tied directly to the crime. At first, Campbell Circuit Judge Fred Stine ordered that the evidence, in possession of Commonwealth attorneys, be produced for testing. But then Commonwealth Attorney Michelle Snodgrass petitioned the court for reconsideration, arguing that Kentucky’s DNA testing statute only applied to those sentenced to death. In revisiting the issue, Judge Stine wrote in his opinion that the statute allowed testing only in “those ‘extraordinary circumstances’ involving a fraud upon the Court, ‘bad faith conduct, abusive judicial process, any deception of the Court and lack of candor to the Court.'” Since no such conduct occurred during Mr. Virgil’s trial, testing was denied. Mr. Virgil’s attorney Linda A. Smith, from the Kentucky Innocence Project, voiced her displeasure with the court’s order, saying “The first value of our justice system cannot be merely finality, it must be to seek and do justice. The truth should not be threatening to anyone in the criminal justice system and truth is what Mr. Virgil is seeking.”
In cases like this, even where a statute exists that might appear to deny DNA testing, the option is always there for the state’s attorney to agree to testing independent of the courts. We have seen just that happen in several cases involving Pennsylvania Innocence Project clients. Not only does the agreement of the prosecutor save valuable time and resources, but it puts the issue where it belongs: on the side of justice. Testing can either confirm guilt or establish innocence. Which always leaves so many of us asking, why not just test?