SPENCER: THE ADMISSIBILITY OF DNA IN CAPITAL CASES

By

Bhakta David Nollmeyer

Timothy Wilson Spencer was tried in Virginia for multiple murders. These cases were the first in the United States where the admission of DNA evidence led to guilty verdicts resulting in capital punishment. The Virginia Supreme Court upheld the murder and rape convictions of Spencer. Spencer had been convicted on the fact that DNA testing matched his DNA with that of semen found in several victims. In Spencer, the defendant's attack upon the introduction of DNA evidence was limited to the issue that it's novelty should have grounds for the court to "hold off until another day any decision..." No expert witnesses challenged the issue of the general acceptance of DNA testing among the scientific community (National Institute of Justice 1966).

The State of Virginia accused Timothy Wilson Spencer of committing two particularly heinous rape-murders within a three month period in 1987. Spencer was the prime suspect in both crimes due to the prosecution obtaining a positive DNA match between a sample of his blood and semen and that found at the crime scenes and a victim. The two crimes were tried separately. (A total of three cases reached the appellative court (Spencer v. Murray 1993). The trial judge at each instance allowed the prosecution to introduce evidence of the DNA match. The Court also permitted a demonstration of  the probability of two individuals having the same DNA type was rare. In both trials, the jury returned guilty verdicts on all counts. Spencer was the first person sentenced to capital punishment based on DNA evidence (Petrosinelli 1990).

In the murder of Debbie Davis, Spencer made substantial claims against the sufficiency of DNA and it's methodology.

Semen stains were found on the Davis' bedclothes. Spermatozoa was discovered through rectal and vaginal swabs of the victim. The victim’s pubic hair was combed and two hairs were recovered that were not hers. 384 S.E.2d at 789. The two hairs were determined by forensic analysis to be “consistent with” Spencer’s underarm hair. 384 S.E.2d at 789. Forensic analysis was completed on the semen stains. The tests revealed that the stains had been made by a secretor whose blood characteristics matched a group of approximately thirteen percent of the population. Spencer’s blood and saliva samples established that he is a member of that group. 384 S.E.2d at 789 (Loland).

Spencer made claims that (Loland):

1. Bandshifting that may have occurred because the tests were not run on same gel.

2. Lifecodes’ procedures do not guard against cross-contamination or bacterial contamination.

3. Lack of data on the reliability of DNA testing of degraded forensic samples.

4. Incorrect matching resulted by visual inspection used to declare a match over a computer match.

5. Poor quality control or proficiency standards resulted in invalid results.

6. Lifecodes did not record what voltage they applied to gel resulting in invalidity.

7. There is verification to know whether Lifecodes properly performed tests. There are no standards for licensing or required protocols that labs must complete.

8. Improper testimony about the statistical likelihood of finding matching DNA type because of improper application of the product rule.

Spencer repeatedly has argued that the main reason the DNA evidence was found to be admissible is because it was “too new” to have been critiqued. Post-trial criticisms were published. The fact that he was  the first person ever convicted with DNA evidence in Virginia was also prejudicial (Loland).

The appellative court argued (Spencer v. Murray 1993)

Overall this is the third murder and rape committed by Spencer which has arrived to the appeal court. Both of our earlier cases arose out of convictions obtained in the City of Richmond. Spencer v. Murray, 18 F.3d 229, (4th Cir.1994) (murder of Susan Hellams) (published); Spencer v. Murray, 5 F.3d 758 (4th Cir.1993) (murder of Debbie Davis), cert. denied, --- U.S. ----, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).

Case Brief 

18 F.3d 237: Timothy W. Spencer, Petitioner-appellant, v. Edward W. Murray, Director, Respondent-appellee (1993)

Facts: Timothy Wilson Spencer appeals a Virginia state court judgment condemning him to death for the murder of Susan Tucker in Arlington County, Virginia. The district court denied Spencer's motion for a writ of habeas corpus and dismissed his case. The appellant court affirmed.

The nude body of Susan Tucker was found in her Arlington townhouse on December 1, 1987. Tucker had been raped and killed by ligature strangulation. The facts of the murder are not at issue. The court refers to the Virginia Supreme Court's opinion on direct review in this case. Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989).

Spencer's invoked considerable legal cases and motions to address deficiencies in the instant case.

Spencer was convicted and sentenced to capital punishment by jury on July 16, 1988. He appealed his convictions and sentences to the Virginia Supreme Court. The Court affirmed. Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989). Spencer petitioned The United States Supreme Court for a writ of certiorari. Denied. Spencer v. Virginia, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

Spencer petitioned the Circuit Court of Arlington County for a writ of habeas corpus. His motion was dismissed and denied on July 17, 1990. Spencer v. Thompson, No. 90-424 (Cir.Ct. of Arlington County, July 17, 1990). On October 15, 1990, the pleadings in the state habeas case were filed in the Virginia Supreme Court, but no petition for appeal was filed not filed timely within legal statutes. The Virginia Supreme Court  returned the record to the Circuit Court of Arlington County on April 24, 1991. On October 3, 1991, Spencer motioned   to file a petition for appeal out of time. The Virginia Supreme Court denied on October 22, 1991.

Spencer then moved the United States District Court for the Eastern District of Virginia. The district court denied Spencer's petition for a writ of habeas corpus and dismissed the case on May 7, 1993. Spencer v. Murray, No. 3:92CV507 (E.D.Va. May 7, 1993). Spencer filed an appeal and a motion for a certificate of probable cause on June 4, 1993,. The district court denied on July 8, 1993. Spencer v. Murray, No. 3:92CV507 (E.D.Va. July 8, 1993).

Spencer prosecuted his appeal in this court without applying for a certificate of probable cause.

Spencer raises three issues here: (1) Mitigating evidence were not addressed by the jury instructions and verdict form at the sentencing phase; (2) Virginia's appellate review of capital sentences is inadequate; (3) forensic DNA profiling is unreliable.

Main issue: Is DNA evidence scientifically reliable in a capital case? Yes. 

Court’s decision: Affirmed. Spencer did not exhaust his state remedies. 3 28 U.S.C. Sec. 2254(b). Spencer's first claim addressing the jury instructions and verdict form's failure to adequately address mitigating evidence is denied. Spencer has made claims of vagueness towards extraordinary jury discretion.

The district court's held that the claim was raised on direct review but procedurally defaulted under Va.Sup.Ct.R. 5:25 may be incorrect. The district court was correct in dismissing the claim concerning mitigating evidence because evidence has not been presented to the state courts and therefore is not exhausted.

Spencer's second claim, attacking Virginia's appellate review is also denied. The claim was not raised in his direct appeal to the Virginia Supreme Court. Spencer has not exhausted his state resources on this claim. 28 U.S.C. Sec. 2254(b).

Spencer's third claim attacks forensic DNA profiling as unreliable. Spencer has not stated a federal claim supporting his allegations. 5 28 U.S.C. Sec. 2254(a). Even construing his petition as a denial of due process, the results remain the same.

The claim would be dismissed for failure to exhaust under Section 2254(b). Spencer's claim that the DNA evidence was inadmissible was presented on direct appeal, but the admissibility of evidence under state law is not a question of consideration on the merits on habeas review. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960); see also Spencer v. Murray, 5 F.3d 758, 762 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).

Spencer claimed that his counsel was ineffective in handling the DNA evidence in his petition for appeal from the instant court's decision on his habeas petition. He was denied to file his petition out of time. This claim in the state habeas case was not presented to the highest state court for review. It is denied for failure to exhaust.6 28 U.S.C. Sec. 2254(b). Therefore the court does not review any of Spencer's DNA evidence claim.

All of Spencer's claims for relief under a cognizable habeas corpus are denied for failure to exhaust his state remedies.

Holding: All claims for relief are subject to be denied for failure to exhaust state remedies or failure to state a cognizable federal habeas corpus claim.

My Thoughts: Spencer's actions reflect a fugue of activities of a condemned person. Serious procedurals errors in my opinion result from his not exhausting state appeals to the Virginia Supreme Court. Even so appellative review clearly argues that evidence, particularly the DNA was inculpatory and a correct procedure through the court system does not change material fact or judgments made on those facts.

DNA evidence was upheld as valid in capital cases.

Works Cited

Loftland, L. Serial killer claims dna testing Is flawed – Appeal denied.  The Graveyard Shift. Retrieved: November 11, 2011:  http://www.leelofland.com/wordpress/?p=366

National Institute of Justice 1966. The dna wars are over. Retrieved November 11, 2011 from: http://www.pbs.org/wgbh/pages/frontline/shows/case/revolution/wars.html

Petrosinelli, 1990. The admissibility of dna Typing: A new methodology. Georgetown Law Journal. December, 1990. 79 Geo. L.J. 313.

18 F.3d 237: Timothy W. Spencer, Petitioner-appellant, v. Edward W. Murray, Director, Respondent- appellee (1993). Supreme Court. Retrieved November 11, 2011 from: http://law.justia.com/cases/federal/appellate-courts/F3/18/237/531097/