Lab contacts

This is a page that details our contacts with Virginia DFS. Our mails are copied verbatim but the replies are summarized by us as we are not allowed to reproduce their e-mail.

January 14, 2014

Dear Ms Merritt and Ms Studer, I hope you have had pleasant holidays and send best wishes for the coming year. I have been reading the transcripts of the court proceedings again and some questions have arisen. According to your records, the evidence was never returned to the police and the police records indicate that they never retook possession of the evidence. So if it wasn’t returned to the police but retained, where is it? I understand that you must be meticulous in keeping track of evidence considering chain of custody procedure, which makes it impossible to understand that you don’t have the evidence in your custody. What I find myself wondering is that in the change from manual to computer documentation that the records may have an error. I also wonder about the question of responsibility. If the evidence according to chain of custody is at your agency and you say that it isn’t, and this is the evidence needed to prove Joe’s guilt or innocence, what is the responsibility of the Government of Virginia in allowing Joe to remain in prison? I would very much appreciate any light that you can shine on this area. Yours sincerely, Barbara Nelson

Joe’s comments to earlier correspondence:

“The response does not surprise me and it is typical lawyer speak. She says a lot without really saying anything.  OK, they search 20 times and come up with nothing. The question then becomes “why can’t you find it?” We know by their own records  that they had possession of that evidence, that the evidence in question, again, according to their own records, was never returned to the police (the police records indicate that they never retook possession of the evidence in question). Did the lab people dispose of it or otherwise destroy it?

 No, not according to those who testified at the hearing. “We never destroy evidence”. They say that if they don’t return evidence to the agency who submits it to them, they retain it. So, if it wasn’t returned to the police, if it wasn’t destroyed, but retained, where is it? Did they simply lose it? On this question they never say yes or no” They simply hedge and say “ We searched, but sorry”.

They’ll never admit to destroying or simply losing crucial evidence relevant to a capital murder case. The correspondence you’ve had with them seems to make it clear that they intend to stick to their ambiguous position, and as you can see when you pushed a bit more and made it clear that you had the record of the 2004 hearing, she was quick to point out that counsel should be consulted, and even they we won’t open any doors unless you have a court order, etc. And of course there’s the “your visiting us would not be a good use of your time”. It is extremely frustrating to say the least.

I am fine with you putting that stuff up on the site, but I would also include my comments in this letter along with it.

They retain the evidence for possible future use (June Browne-Tillman) they don’t destroy evidence, ever, yet they search, and search, and search, but can’t find it? Their records make it exceedingly clear that they are meticulous in keeping track of evidence, ie. nothing moves inside or outside the agency or between agencies unless it is clearly documented, itemized and signed for, etc. They are exceedingly careful about that for a reason – it has to do with chain of custody – any broken links in the chain can render that evidence legally invalid. Now, as in 2004, and in the 1980s, it seems that everyone on their side of the case knew, according to their records, exactly where the evidence was. It was only after those on my side of the case began asking to see/testthat evidence, that no one seems to know where it got off to.

I’m not at all sure where to go with the Lab at this point. It is a classic “Catch 22”. We can’t get a court order unless we locate the evidence. We can’t locate the evidence unless we get a court order. That is where the 2004 hearing left us.”

Summary of e-mail from DFS December 17, 2013

It was suggested that we discuss our questions with Joe’s lawyers.

The structure of the agency was described so that their response was for all DFS labs in Virginia.

From: Barbara Nelson [mailto:barbaranelson@bredband.net]
Sent: Tuesday, December 17, 2013 6:30 AM
To: Merritt, Stephanie (DFS)
Subject: RE: Request for Information; Joseph Giarratano

Dear Ms Merritt,

I awoke early this morning with questions formulating in my mind to ask you. You have been very kind in wishing to assist me and promptly answering my queries.

And so I dare to ask you for your advice. What would you advise me to do in the present situation?

The evidence is not in your lab.  At the hearings in 2004, the possibility of sending evidence to the central lab in Richmond was named as it was much larger than the Norfolk lab in 1979. Would you advise me to contact them?

It seems that evidence may be stored at the Office of the Chief Medical Examiner, at the Division of Forensic  Science or at the Police Department. When would evidence be stored at the respective places?

What are the procedures as to when evidence is to be stored or disposed of? Can there be different routines at the respective places?

I very much appreciate your considering my questions.

What I would really like to ask you is what YOU would do in my situation?

Best wishes,

Barbara

Summary of e-mail from DFS December 16, 2013

It was suggested that a meeting with the department would not be a good use of our time. All DFS evidence is audited and physically searched twice yearly. We would not be able to have access to the evidence without a court order. 

From: Barbara Nelson [mailto:barbaranelson@bredband.net]
Sent: Sunday, December 15, 2013 10:03 AM
To: Merritt, Stephanie (DFS)
Cc: Studer, Carisa (DFS); Gaskins, Mary (DFS)
Subject: RE: Request for Information; Joseph Giarratano

Dear Ms Merritt,

Thank you very much for your prompt reply, and especially for taking the time and effort to review the records.

I have a copy of the  court proceedings from January 21, 2004, soon 10 years ago. Next year Joe will have served 35 years in prison, and wants nothing but the chance to prove his innocence.

From reading the trial records I understand that should any further indication be made of any possible existence of human biological evidence, it can be presented to the Court.

When the director of DFS requested that the evidence room be searched he received a reply after just 35 minutes referring to your system FACTS that no evidence was found. Since the evidence in question is from 1979, perhaps it wasn’t  recorded in FACTS but might still be found by a physical search. Since the chain of custody stops at DFS in Norfolk, it is my slim hope. The possibility that the evidence might be stored in the Central Lab in Richmond was also brought up.

I understand that as a private person your communication would be with Joe’s attorney.  Would it be possible to visit you together with Joe’s attorney this spring when I am in Virginia in hopes that you may make a physical search.

I would appreciate whatever suggestion you might have as to how to proceed.

Yours sincerely,

Barbara Nelson

Summary of e-mail from DFS December 13, 2013

We were advised that usually discussions are held only with the attorney. We were also told that the DFS case file was produced in 2003 via subpoena and nothing had changed since then.

Barbara’s first e-mail to DFS in December 

Hello,

My name is Barbara Nelson and I am next of kin to Joseph Giarratano.

In 1979 Joe was condemned by the Commonwealth of Virginia to death for the
murders of Barbara Kline and her daughter Michelle Kline. In February 1991
Joe came within two days of dying in the electric chair. The merits of his
case for innocence drew attention and support from diverse organizations and
Governor L Douglas Wider was prompted to review the case. He agreed that
coerced confessions, shaky evidence and poor representation cast serious
doubts on Joe's guilt. Governor Wilder ordered that Joe be released from
death row, commuted his sentence to life imprisonment and recommended that
he be given a new trial.  Joe has never been given that new trial.

In 2001 the Virginia Legislature partially revised Virginia's 21-day rule by
giving inmates the chance to request DNA testing on previously untested
evidence. In 2002 Joe's attorneys filed a request in the Circuit Court of
Norfolk that the evidence be produced. There was a hearing in 2004 (January
21). The chain of custody for the biological evidence including the vaginal
swabs, fingernail samples and other autopsy samples, stops after the lab
testing and certificate that the autopsy evidence was available for pick up.
At the hearing in 2004, it was stated that the evidence was not found in the
lab's records.

In 1979 the possibilities of our information technology age of today were
not available and I am hoping against hope that the evidence may be
physically at the lab without the documentation being updated and accurate.
It is Joe's only hope to prove his innocence.
I am writing to ask you what would be required for you to do a physical
search for this evidence. I live in Europe and will be in the US this
spring. Would it be possible to visit you then? Would Joe's attorney need to
be present? Is there some documentation that you need in advance?

Thank you very much in advance for considering this request and for doing
all that is in your power to help an innocent man prove his innocence.

Sincerely,
Barbara Nelson