Virginia Forensic Science Dept & Actual Innocence Writs- Fairfax Criminal Lawyer (Image copyright Deposit Photos)

Fairfax criminal lawyer on the Virginia Forensic Science Department and Petitions for Writs of Actual Innocence

Virginia Forensic Science Department — also known as the Department of Forensic Science or DFS — is involved in such wide-ranging activities as governing breath and blood testing for alcohol content in DUI cases, testing alleged illegal drugs, and scientific testing involving petitions for writs of actual innocence. As a Fairfax criminal lawyer, I repeatedly deal with forensic toxicologists and chemists from the Virginia Forensic Science Department.

Fairfax criminal lawyer on the Virginia Forensic Science Department’s exclusive scientific testing province with petitions for writs of actual innocence

In the early 2000’s, Virginia law changed to permit criminal convicts to file petitions for writs of actual innocence. Va. Code § 19.2-327.2; In Re Sherman Brown, ___ Va. ___ (March 22, 2018). Such a petition for writ of actual innocence cannot be granted absent proof “that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt.” Va. Code § 19.2-327.3;  Brown, supra. 

Fairfax criminal lawyer on the Virginia Forensic Science Department’s exclusive province over scientific testing for petitions for writs of actual innocence

The Virginia DFS has exclusive province over scientific testing for petitions for writs of actual innocence. Va. Code § 19.2-327.3(A); Brown, supra. Sherman Brown learned that this week when the Virginia Supreme Court rejected his petition for writ of actual innocence both because the “actual-innocence and testing statutes limit our review of allegedly exculpatory biological evidence to test results certified by DFS;” Brown did not obtain such test results from the DFS nor from a DFS-approved lab; and the DNA testing that did not find Brown’s DNA did not by itself rule out Brown’s guilt where “’DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent.'” Brown (quoting District Attorney’s Office v. Osborne, 557 U.S. 52, 62 (2009)).

This is part one of a two-part article. The next part addresses how Brown’s own words helped get him convicted and eliminated his chances at winning his petition for a write of actual innocence.

Fairfax criminal lawyer Jonathan L. Katz has since 1991 successfully defended thousands of people charged with violent and other crimes. To discuss your case with Jon, please call his staff at 703-383-1100, to schedule a confidential appointment.