CHARLOTTESVILLE—Sherman Brown faces some hurdles if he is to be cleared by the Virginia Supreme Court for the murder of a 4-year-old Ivy boy who was stabbed to death in 1969.
But what may prove the toughest obstacle was overcome two years ago by a private investigator and a persistent University of Virginia Hospital employee who scaled warehouse ladders searching shelves and poking into long-closed boxes with a flashlight in a hunt for a microscope slide almost a half-century old.
“When I found it, I got it out of the drawer, I said, ‘Yes!’” recalled Kimberly Crawford, an administrative assistant in the hospital’s pathology department.
She had cause to be thrilled: A supervisor explained, “We only need to keep those for five years—so that is actually quite a miracle.”
The case for Brown’s guilt in 1970, as well as his pending innocence claim, ride in large part on whether the slain boy’s mother, knocked unconscious in the attack, was sexually assaulted.
The discovery of the woman’s vaginal smear slide illustrates the challenges in locating decades-old evidence and also raises a question about why a 1969 report identifying sperm on the slide did not surface at Brown’s trial.
Sometimes old evidence sought for DNA testing is found where it is least expected, where it shouldn’t be, or even after it has been said to be destroyed, said Deirdre Enright, director of investigation for the University of Virginia School of Law Innocence Project Clinic, which has been involved in Brown’s case for five years.
With limited budgets, the staff and volunteers of innocence projects often have to coax, cajole and otherwise persuade clerks, police and others—under no obligation to help—to look for evidence that’s decades old, and that records and officials may incorrectly say no longer exists.
“You’re always playing in this world of what appears to be real, may not be real,” Enright said, adding, “We’re in a mental place where suspicion is warranted.”
In 2001, inquiries by the Innocence Project in New York led to the discovery of a trove of old biological evidence where it should not have been: taped inside the old paper files of the Virginia Department of Forensic Science in Richmond.
The bits of fabric cuttings and swabs thus far have cleared 11 Virginia men wrongly convicted of sexual assaults.
Had the forensic lab’s policy—which called for such evidence to be returned to police agencies not necessarily obligated to save it—been followed, the truth may never have come out.
Enright said evidence searches can go on for years but often happen in spurts, as in Brown’s case.
Now 69, Brown is 46 years into a life sentence for the murder of the boy on the afternoon of Oct. 1, 1969.
Authorities alleged he killed the child to eliminate a witness to the rape or attempted rape of the boy’s mother, who was knocked unconscious and repeatedly stabbed. She survived and identified Brown.
The Innocence Project, which uses DNA testing to clear wrongly convicted persons, says Brown first contacted them seeking help in 2000. At the time, the New York-based organization was helping Earl Washington Jr., wrongly sentenced to death for a rape and murder in Culpeper. Washington was exonerated by DNA.
Brown also was sentenced to death but was spared execution when in 1972 the U.S. Supreme Court halted executions. The death penalty was reinstated in 1976, but by then, Brown and 11 other condemned Virginia inmates had been re-sentenced to life terms.
Susan Friedman, a staff attorney with the Innocence Project and one of Brown’s lawyers, said Brown was accepted as a client in 2005. Efforts began to find biological evidence, which, if subjected to DNA testing, might support or prove his innocence claims.
With the agreement of the Albemarle County Commonwealth’s Attorney’s Office, examination and testing of crime scene evidence entered at Brown’s trial began in 2008 and stretched into 2012.
The items included the mother’s bathrobe and nightgown, a knife blade, knife pieces and a paper cup believed to have been handled by the assailant, with many of the items failing to yield meaningful results.
While Brown’s DNA was not found on crime-scene evidence and the victims’ DNA was not found on his clothing, the absence of DNA in and of itself does not prove innocence.
In 2011, the Innocence Project contacted the University of Virginia School of Law Innocence Project Clinic. Enright, along with Lisa Inlow, a private investigator who works for the innocence clinic, began investigating and interviewing witnesses.
Enright said they talked with Brown’s family, who stood behind him; went to the crime scene; and talked to a rescue squad worker who had responded to the scene.
In 2012, Inlow and Stephen Rosenfield, a Charlottesville lawyer, began looking for any further evidence that might be tested but found nothing. The next year, Albemarle Sheriff J.E. “Chip” Harding pitched in to search but also was unable to find anything else.
In April 2014, the Innocence Project in New York asked the law school’s innocence clinic to look for hair slides and a sweater that was discussed at trial but was not entered into evidence. But on June 27, 2014, the commonwealth’s attorney’s office reported that no more physical evidence had been found.
Enright said, “I gave up 20 different times ... feeling like we were never going to be able to deliver. I kept thinking the real problem is: Everybody likes him and his case so much and believes him, and nobody wants to say, ‘We just can’t deliver.’”
“Everyone wanted to avoid that hard conversation with somebody everybody has grown to love,” Enright said. But, she said, “Lisa would never allow that.”
Inlow, owner of A Matter of Fact LLC, said, “I couldn’t give up.”
Olga Akselrod, at the time a staff attorney at the Innocence Project, suggested contacting the university hospital. She recalled trial testimony about a gynecological examination conducted at the emergency room where the mother was brought to treat her stab wounds.
There was a slim, highly unlikely chance it still existed. But if it did, DNA testing of any sperm on it might be highly relevant evidence.
“I started harassing the hospital,” Inlow said.
“I went around in circles. One person would say, ‘I don’t think we would have anything, but you could try this person in this department and try this,’” she said.
Inlow was looking for anything that might remain of a physical evidence recovery kit, or PERK, or a sample left from a sexually transmitted disease test the hospital might have conducted.
The investigator was told in July 2014 that the hospital “keeps PERK kits forever,” but officials needed to know more about the patient to find it.
Inlow collected the information and sent it to the hospital. Then on Oct. 9, she was told that PERKs did not exist in 1969.
Nevertheless, on Oct. 21, 2014, more than 45 years after the crime, a copy of a department of pathology report, dated Oct. 2, 1969, and written by “Dr. A.E. Sproul,” was sent to Inlow from the hospital.
The report said: “The specimen is received on a glass slide. This is labeled ‘vaginal smear.’”
Under “DIAGNOSIS,” the report concludes, “Vaginal smear: Sperm present.”
“So, we have a report, but we don’t know if the slide still exists,” Inlow said.
She faxed the report to Crawford, at the pathology department, to see whether it could be found, and she waited.
Crawford, employed at the department for almost 10 years, said, “We get requests a lot. That’s part of our job here.”
But, she added, “This was the oldest and (most) unusual thing that I’ve ever had to get.”
All she knew was that a slide needed to be located for a person who was in prison who believed it could prove he was innocent.
Because it was a cytology slide—a branch of pathology—it was unlikely it would have been kept, Crawford said.
“It was almost one in a million that you would find it,” she said. “I asked God, I said, ‘God, please, please, you know where that slide is at, please help me.’”
She said it was the most “intense” search she ever had performed. It required her to go to a secure, dusty warehouse on state property, away from the hospital, for four days in a row.
The hunt involved tracking numbers; climbing a heavy, movable ladder; and opening old, large cardboard boxes in search of information that would lead to the slide.
“It’s a lot of boxes. I got to looking and looking. It was like an hour a day I spent digging through things.”
The box in question was at the top of some high metal shelves and buried under other boxes. Once she chased down the correct number, she was able to go to a bank of old metal shelves holding microscope slides.
“Then I had to go to the drawer that it was actually in and hoping it would be there—and it was!”
“Oh, my gosh, I was so excited,” she said.
Marilou Maglione, administrative director of anatomic pathology at the hospital, said, “She actually had to use a flashlight as well to look into these boxes, because it’s so dark in there.”
Maglione said, “It was actually quite an amazing find, because that’s way beyond the length of time that we’re required to keep anything.”
But, she said, “Because we have the space we keep as much as we can and hopefully it will help somebody—and in this case, it really paid off.”
“I would just like to say how proud I am of Kim for her tenacity in continuing to look for this slide. I think it really shows how much she cares about people and doing the right thing and looking in that warehouse. It’s daunting, and she could have given up, but she kept at it because she realized how important this was.”
The Innocence Project, with the agreement of the commonwealth’s attorney’s office, obtained a court order to test the material on the slide.
The testing turned up the DNA profile of a single male who is not Brown and—with a better than 98 percent probability—not the woman’s husband at the time, who now is deceased.
Armed with the test results, the Innocence Project filed a petition for a writ of actual innocence with the Virginia Supreme Court last month. Also involved in the case is the Mid-Atlantic Innocence Project in Washington and the Washington law firm Skadden, Arps, Slate, Meagher & Flom LLP.
The case is on hold until January in the hope that further testing can completely eliminate the former husband as the source of the male DNA found on the slide.
Brown’s lawyers also have filed a civil appeal of his conviction contending his constitutional rights were violated by scientifically invalid expert trial testimony on hair and fiber evidence—the only forensic evidence linking Brown to the crime.
Brown was not charged with rape, but the presence of the DNA profile of an unknown male in the vaginal smear taken from the woman—who had a monogamous relationship with her husband—is powerful evidence that Brown did not commit the crime, argue his lawyers.
The Virginia Attorney General’s Office will have a chance to weigh in on that with the Virginia Supreme Court and may take a different view.
At the trial, authorities alleged Brown sexually assaulted the woman and then killed the boy and attempted to kill his mother to eliminate witnesses. In his closing argument, Downing Smith, one of the prosecutors, argued that Brown “tried to rape that mother or did rape her. We will never know.”
The woman was unconscious during the attack. But among other things, her underpants, which had been on when the assailant arrived, were off when she was found.
A surgeon, Dr. E. Merdith Alrich, testified he was called to the emergency room at the University of Virginia Hospital around 6 the evening of the crime.
He said that when he first saw the mother, she was conscious. But he said she was in shock and in critical condition, suffering from serious stab wounds to her torso. She also had head lacerations from blows rather than knife cuts.
While describing the various actions taken to treat her, Alrich testified, “At the instruction I guess of the sheriff, we called the GYN service to make an examination before she left the operating room.”
Evidence is taken from the vaginal/cervical area in rape cases with a swab and then used to create a microscope slide which is viewed to determine whether sperm is present. As the Oct. 2, 1969, report notes, sperm was found in the slide.
Neither the pathology report nor the slide were introduced at the trial—something defense attorney Robert P. Boyle noticed. If he knew about it, he feigned ignorance when attacking the prosecution’s case in his closing argument.
Boyle reminded the jury that “Dr. Alrich testified that when he finished, they sent her to the GYN man.”
“But he inspected her and no semen. You can be certain if they found it, they would have been here to testify to it. No semen, and the motive was supposed to have been rape,” Boyle argued.
The judge, the prosecutors and the defense lawyers all are deceased.
Frank Green writes for the Richmond Times-Dispatch.