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In re Scott - 297 Va. 166, 824 S.E.2d 1 (2019)


The Supreme Court of Virginia shall grant a writ of actual innocence and vacate a petitioner's conviction, only upon a finding of clear and convincing evidence that the petitioner has proven all of the allegations contained in clauses (iv) through (viii) of Va. Code Ann. § 19.2-327.3(A), and upon a finding that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt. Va. Code Ann. § 19.2-327.5.


Winston Lamont Scott filed a petition for a writ of actual innocence based on biological evidence pursuant to Code § 19.2-327.2, et seq. At trial, it was established that JD, the victim, was attacked by a single perpetrator. JD testified that the drapes were drawn, there was little light in her room, and she did not get a good look at her attacker. However, she was able to assist the police in creating a composite sketch of her attacker. In a second photo line-up presented to her a couple of months after the crimes, the victim identified Scott as her rapist. She identified him at trial, and she has not retracted her testimony.

At trial, Scott presented the September 1975 COA regarding a sample from a semen stain from the crotch of "jeans worn by victim." This COA was admitted into evidence without objection. The Commonwealth also introduced into evidence without objection the November 1975 COA concerning a second sample taken from the semen stain in the crotch of those same jeans. The two serological COAs were contradictory. Scott also presented alibi witnesses stating that he was at their home on the night of the rape.

Based upon the victim's eyewitness identification, the jury returned a verdict of guilty.

Subsequently, DFS did a DNA test on those same samples from the semen stain found in the crotch of the jeans worn by the victim. The DNA testing developed a DNA profile that revealed the same contributor for the sperm fractions found in both samples. Further, DFS DNA testing conclusively eliminated Scott and RN—the victim's boyfriend—and the only person the victim was having consensual sex with at the time as the contributors of the sperm found in the crotch of the victim's jeans.

DFS also did a DNA test on a vaginal swab taken from the victim within hours of the rape. The partial DNA profile DFS developed from the vaginal swab is concordant with the DNA profile found in the semen stain sample from the victim's jeans. Thus, a male profile from sperm that cannot be attributed to Scott or RN is found in both the jeans crotch samples and the vaginal swab of the victim.


Was defendant entitled to a writ of actual innocence based on biological evidence pursuant to Va. Code Ann. § 19.2-327.2 et seq.?




Upon reviewing the totality of the evidence, including records from the original case, the evidence presented at the original trial, the newly-discovered biological evidence, and the proffers made by the petitioner and the Commonwealth, the Court finds that Scott has proved, by clear and convincing evidence, all of the allegations required under Code § 19.2-327.3(A) and that no rational trier of fact would have found him guilty beyond a reasonable doubt in that he has been scientifically proven by DNA analysis to not be the source of the sperm found on the victim's jeans or the male DNA found on the vaginal swab obtained from the victim.

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