A Virginia Beach Circuit Court judge ruled Monday in favor of a request by the Innocence Project at the University of Virginia School of Law to test new forensic evidence the clinic uncovered on behalf of its client, Darnell Phillips. The evidence, which includes untested swabs from a rape victim, may hold the key to the man's release from prison 25 years later.

In 1991, Phillips was convicted of the 1990 rape of a 10-year-old girl in Virginia Beach and sentenced to 100 years in prison for the crime. But DNA evidence the prosecutors had obtained was never tested or brought into evidence in his case. After having been told all of the original evidence had been destroyed, the clinic uncovered the new evidence in the fall. The yearlong clinic provides students practical experience in the investigation and litigation of wrongful convictions of inmates throughout Virginia. 

Second Judicial Circuit Judge A. Bonwill Shockley presided over Monday's hearing, which Phillips was able to observe via teleconference. A prosecutor for the state did not oppose the release of the evidence, which will now be sent to the Virginia Department of Forensics Science for review of the potential viability of the biological samples."

"If science changes and something can be done to find out the truth, I think that should be done," Shockley said.
Students in the clinic filed a motion at the end of December to have the items in the evidence bag they uncovered in mid-October tested. The items included DNA swabs from the victim and Phillips, and clothing worn by both. 

After the decision to test, the judge ceded the courtroom so that the clinic directors and students could meet with their client, who was seeing their faces for the first time. A smiling Phillips thanked his counsel and told his family, also in attendance, that he loved them.

"As soon as I go down that hallway, I'm going to shout for joy," he said. "I'm extremely excited."

The latest discovery may never have happened had the clinic not started taking cases that hinged on the now-debunked science of hair microscopy. In the past, forensic analysts claimed that they could match with a high degree of certainty a hair associated with a crime to that of a perpetrator. In truth, forensics experts now agree, microscopic observation alone is an unreliable method of comparing hairs. 

Jennifer Givens, legal director of the clinic, said the FBI changed its policy in 2000.

"Now, in any case where the government intends to present hair comparison testimony, the forensic analyst must conduct mitochondrial DNA testing in addition to any microscopic examination," she said.

In April, the FBI announced the results of a hair comparison study and acknowledged that during the 20-plus year period prior to 2000, when FBI analysts were testifying to hair comparisons made microscopically, the analysts made erroneous statements in more than 90 percent of those cases. As a result, the FBI said the federal government will forgive any such procedural defaults due to timeliness if new evidence is introduced in any federal cases that concluded before 2000. 

The FBI also suggested that states open their own investigations, particularly since former bureau hair microscopy analysts had continued to work and train other state forensics experts in the practice, including in Virginia, even after the 2000 change in protocol. The Virginia Department of Forensics Science stopped doing microscopic hair comparisons for reporting purposes in 2004. The state plans to review previous cases that may have been affected, Givens said.

Phillips, having just turned 18 at the time of his arrest, was convicted of abduction with intent to defile, forcible sodomy, rape and malicious wounding. The key piece of evidence was hair found on a blanket that had been wrapped around the victim by a good Samaritan in the vicinity of where she was found. The commonwealth presented testimony from a forensic expert who claimed that the hair found on that blanket belonged to Phillips. This was the only physical evidence connecting Phillips to the crime.

Phillips pushed for further testing of the hair after his conviction. Deirdre Enright, the clinic's director of investigations, said the results excluded Phillips, who is African-American. The results showed that the hair was not a "Negroid" hair.

"That's the word they use," Enright said. "After that happened, Phillips' counsel went back to the judge and said, 'That's not Darnell's hair. That's not a Negroid hair, but rather the hair of some man who has a white mother.' So the judge says, 'OK, we've got a ballgame. Let's test all the physical evidence.'" 

But police records by that time, 2005, indicated all of the evidence had been destroyed. For the next several years, Phillips made multiple attempts to determine whether there was, in fact, any evidence remaining. In 2010, Phillips filed a final motion for relief, but after that was denied, he seemed out of chances. 

"Over the past few years, clinic students kept filing Freedom of Information Act requests to determine whether there was indeed anything left," Givens said. "In response, officials refused to answer, claiming the criminal investigation exemption under the Virginia FOIA statute. The commonwealth's attorney had represented in court as late as 2009 that all evidence related to Mr. Phillips' case was destroyed by the Virginia Beach Police Department.” 

By chance, however, Givens was on the phone with the Virginia Beach clerk in October about receiving some files in the case. She thought she'd try one more time.
"I mentioned to her that as far as we could tell, there was no physical evidence remaining, and she replied, 'Oh, we have a bag of evidence here,'" Givens said. "I told her that we’d be there as soon as possible to have a look. Two students and I headed to Virginia Beach the next week. We figured they might have some random items, but assumed that most of the important evidence was long gone."

Under the watchful eye of a retired sheriff's deputy assigned to prevent evidence tampering, they found the evidence bag. Third-year law student Anna Stark and second-year law student Sabrine Tribié were along with Givens when the discovery was made.

"Once we realized what was inside the bag, I had a difficult time containing my excitement," Tribié said. "Not only did we find the victim's PERK kit and undergarments, but we found just about all the physical evidence in the case. I looked over at Professor Givens and whispered that we had just hit the jackpot."

Givens said she too had to curb her excitement.

"None of us wanted to exclaim," she said, “but we all realized that after all these years our client may finally be able to prove his innocence. It’s hard not to feel excited about that.”

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.