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| DNA Test Ordered for Va. Inmate |
| By Washington Post |
| Published: 08/03/2001 |
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A judge in Newport News has ordered DNA testing for a man serving a 42-year sentence for rape, marking the first use of a Virginia law that allows convicted felons to seek scientific confirmation of their claims of innocence. The victim -- who was 8 when the crime was committed and who provided the crucial testimony in Kenneth Balka's 1987 trial -- was in the courtroom when Circuit Court Judge Verbena Askew granted Balka's request. Balka, now 56, has always maintained his innocence and was thrilled by the ruling, said his attorney, Christopher Amolsch, of the Innocence Project of the National Capital Region. Prosecutors in Newport News did not oppose the request. What happens next is unclear. The law, signed in May by Gov. James S. Gilmore III (R), calls for testing according to standards established by the state Department of Criminal Justice Services. The department has not set guidelines yet. In addition, the law gives the state until November 2002 to set up a process for issuing a 'writ of actual innocence.' Newport News Commonwealth's Attorney Howard Gwynn said that the gaps in the law probably would have to be remedied by the General Assembly but that he would not oppose attempts to free Balka before then if DNA from the crime doesn't match Balka's. But the writ is only a problem if the testing is in Balka's favor. 'I'm sure,' Gwynn said, 'when the DNA testing comes back, it's going to be Mr. Balka's.' Balka was the first person to obtain a test under the law, which passed the General Assembly unanimously in February and became effective, in part, immediately upon Gilmore's signing it. The law was enacted in response to criticism of Virginia's deadline for introducing new evidence of innocence -- just 21 days after sentencing. The law applies only to scientific evidence; new witnesses or fingerprints still must be presented to the court within the three-week deadline. Also, only inmates convicted of Class 1 or Class 2 felonies with sentences of 20 years or more are eligible. Defense advocates believe the opportunity to have genetic material tested is only fair. 'Most convictions are based on eyewitness testimony,' Amolsch said, 'which is widely recognized to be unreliable, but we all pretend it's reliable because we want convictions.' Gwynn said he was not surprised that the judge on Monday ordered the DNA testing. 'It's a pretty administrative statute,' the prosecutor said. 'If you meet all the requirements, you get the testing.' |
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