Virginia Lawyers Weekly

NORFOLK—A former death row inmate has asked the state to search for any biological evidence that remains from the 1979 slayings of a woman and her teenage daughter so he can seek DNA testing.

Joe Giarratano’s request to a Norfolk Circuit Court judge comes as momentum continues to build for Virginia to relax its toughest-in-the-nation deadline for convicted felons to present new evidence of innocence.

Virginia had long barred courts from considering any new evidence more than 21 days after sentencing. But a 2001 law gave inmates the right to ask for DNA tests, and Virginia voters last month approved a constitutional amendment that allows felons to present that scientific evidence to the Supreme Court of Virginia to seek a “writ of actual innocence.”

Virginia’s Judicial Council, a group of judges, legislators and lawyers, is scheduled to meet Monday to consider whether the state Supreme Court should expand that rule to allow felons to seek a new trial if they come up with new, nonscientific evidence, such as fingerprints, ballistics, new witnesses or recanted testimony, that could help their defense. The council will make a recommendation to the court.

The proposed rule would require that new evidence hadn’t been available at trial and that, had it been, it could have materially changed the case’s outcome. The inmate would have to inform the court “within a reasonable time after the discovery of the evidence.”

Justices considered a similar change is 2000 but declined to take action because the Legislature was studying the issue.

DNA testing was not widely used in 1979 and Giarratano was convicted based largely on his statements to authorities.

“Finding that evidence is often the toughest part,” Christopher Amolsch, one of Giarratano’s attorneys, told The Washington Post. “It’s a long shot because nobody knows if the stuff is around or if it’s even testable.”

Giarratano has said he awoke Feb. 4, 1979, to find his two roommates dead in their Norfolk apartment. Barbara Kline, 44, had been stabbed and was lying in a pool of blood in the bathroom. Her daughter, Michelle, 15, was in her room on the bed and had been beaten, strangled and possibly raped.

Two days later, Giarratano, then a 21-year-old scallop boat worker, was arrested in Jacksonville, Fla., after surrendering to police. Giarratano confessed to the killings and, after a half-day trial in 1997, he was convicted of capital murder.

Giarratano later recanted, saying he assumed he was guilty when he awoke in a drug-induced stupor to find the bodies of his roommates. In 1991, then-Gov. L. Douglas Wilder granted Giarratano a conditional pardon that allowed him to escape the electric chair.

Giarratano’s attorneys have asked the state to search for evidence, including blood samples, swabs taken from Michelle Kline’s body and any hairs that were collected at the apartment. If any evidence has been preserved, Giarratano’s attorneys will seek to have DNA testing done on it.

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