A state budget amendment would require the Virginia Forensic Science Board to notify felons when biological evidence is found in their old lab files.

More than 530,000 files from 1973 through 1988 -- before DNA testing was widely used in criminal cases -- have been searched in recent years to find biological material that might exonerate those wrongfully convicted.

The amendment, passed by the General Assembly, must be signed by Gov. Timothy M. Kaine next month to take effect. It was drafted by Del. David B. Albo, R-Fairfax, chairman of the Virginia State Crime Commission and a member of the forensic science board.

Albo, a lawyer, said he believes no one notified will request testing because it would only confirm their guilt.

However, he added, if there is a chance that even one person is innocent, the effort must be made to make sure he or she knows of the newly discovered evidence.

At its January meeting, the board, which oversees the Department of Forensic Science, voted against a proposal to notify felons when biological evidence that may be suitable for DNA testing is found in their files.

Joseph P. Bono, chairman of the board, said yesterday that board members will discuss the amendment at their next meeting, in May.

In January, board members expressed concern about the burden on state agencies searching for the felons, many presumably released from prison.

As a result, it is largely up to authorities to determine whether DNA testing is warranted and to interpret whether the results have any bearing on innocence -- even though qualified felons have a right to petition the court for testing.

Some advocates and experts are concerned that for the most part, only authorities are being told the evidence exists and not those who potentially have the most at stake.

DNA testing in suitable cases is now under way. The project was prompted by a sample testing of 31 such files in 2005 that cleared two men of rapes they did not commit. Both men had already completed their prison sentences.

In all, five men wrongfully convicted of rapes have been cleared by DNA testing of evidence -- swatches of cloth or swabs containing blood, semen or other human biological material -- kept in the old files.

Pete Marone, director of the Department of Forensic Science, said that 2,167 cases have been found where potentially testable evidence has been discovered in the old files and there is a named suspect.

Of that number, 1,386 case files have been reviewed for postconviction testing suitability, with 781 remaining to be reviewed. Qualifying factors include whether there were serious felony convictions.

At this point, 316 cases have been sent to the independent lab conducting the testing, and 91 remain there. An additional 275 fitting the criteria have not been sent for testing yet; 50 of them are to be sent this week.

If there have been any further exonerations, officials have not said so.
Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com.