About five years after abolishing the death penalty, Virginia has named the eight men executed between 1986 and 1998 whose cases will be reviewed as part of a broader reassessment of practices connected to former state forensic scientist Mary Jane Burton.
Timothy Spencer’s convictions in multiple murder cases are among those being reconsidered. His case became the first in the country to use DNA in securing a capital murder conviction. It’s also the first instance in the U.S. of DNA being used to exonerate an individual who was wrongfully implicated when David Vasquez was cleared in one slaying.
His brother, Travis Spencer, who now lives in Tennessee, recently published a book detailing his experiences growing up with Timothy and living through the trials. He said it took him more than 40 years to write.
Spencer — both in conversation and in the pages of his book, “History in the Making” — claimed that evidence was mishandled during the investigations.
The negative media attention likely played a role in his basketball career being derailed.
“I don't blame anyone,” said Spencer, who was a teenager during the investigations. “It was a situation where I was talented. I did have a lot of opportunities to go play Division I basketball, and only one coach took the time out to tell me my my phone stopped ringing.”
Spencer also recalled his older brother saying he wasn’t guilty of the deaths.
“I have my own reasons why I think he was in that situation and why he did what he did,” Spencer said. “But did that make him a bad person or did people not love him because of that? Absolutely not. He was my brother and taught me a lot in the little time he was here.”
In addition to Spencer, the executions of Michael Marnell Smith, Earl Clanton Jr., Edward B. Fitzgerald Sr., Syvasky Poyner, Walter Correll Jr., Alton Waye and Kenneth Wilson are part of a review that will be conducted by a Virginia State Crime Commission panel.
Legislation setting up the initial reassessment of Burton’s work disallowed information from being released through Freedom of Information Act requests, and the state has not previously identified anyone whose case is being reexamined. But a document that included the last names of the eight executed men was made public by the Department of Forensic Science earlier this year. Radio IQ requested confirmation of their names after identifying most individuals through media reports.
Amy Jenkins, DFS chief deputy director, wrote in an email that the names were included in the presentation “because of the historical significance of these cases.”
During a meeting of the Forensic Science Board this summer, a state researcher announced that 7,545 cases connected to Burton had been assessed — a process that took about two years. That work identified 199 cases where the serologist likely testified in court and found 3,857 individuals who were named suspects in more than 5,000 cases where she may have contributed evidence.
The conviction status of thousands of people in those cases has yet to be determined. When that step’s completed, the cases will be assessed by a Crime Commission subcommittee comprising a Commonwealth’s Attorney, public defender, a retired circuit court judge and others.
People potentially affected by Burton’s work are being contacted by DFS, but the department has not contacted the families of the executed men, Jenkins said.
Legislation in 2024 began the reexamination of Burton’s time at the state crime lab, after independent journalist Tessa Kramer found reason to question her practices. A bill the following year defined the review panel being set up by the Crime Commission; members are expected to be selected this summer.
The eight executed men were collectively found guilty in the deaths of 16 people between 1977 and 1993. Most were connected to a single killing, though Poyner and Spencer were found guilty in multiple deaths. The executions were carried out by the Virginia Department of Corrections during the ’80s and ’90s, overlapping with an increase in the American prison population and its use of capital punishment. The term “superpredator” also entered the American lexicon around the same time.
Shawn Armbrust is the executive director of the Mid-Atlantic Innocence Project, and in Spring 2024, conducted an initial review of the eight executions being reexamined. Her remit wasn’t to decide whether the executions were justifiable, but whether evidence or testimony connected to Burton — who worked for the state between 1973 and 1988 — affected the legal outcomes.
Armbrust said she didn’t find that Burton’s participation in the cases came to bear on the results, but noted that most of the men put to death were Black.
“Whether these cases are a legacy of the United States’ history of the way Black men are treated in the criminal legal system — or Virginia more specifically or Mary Jane Burton even more specifically — I can't quantify it,” she said. “But it is really noteworthy that six of the eight executed men were Black.”
Clemency
Virginia became the first Southern state to end its use of the death penalty in 2021, meaning each of these cases would be concluded differently today — despite the federal government and more than 20 other states continuing to use capital punishment.
Former Governors Gerald Baliles, Doug Wilder, George Allen and Jim Gilmore served during the time of the executions — and in at least half the cases were asked to grant clemency to the men who’d been found guilty.
Lloyd Snook — who worked on both the Smith and Waye cases — called the clemency process a joke.
Seated on a couch in his office just behind Charlottesville’s Downtown Mall, the attorney repeatedly referred to a quote by the late Yale University law professor Charles Black: “Though the justice of God may indeed ordain that some should die, the justice of man is altogether and always insufficient for saying who these may be.”
Snook, who currently serves as a Charlottesville city councilor, said the appeals and habeas cases he worked on hinged on psychological — not forensic — evidence, distancing them a bit from Burton. He didn’t dispute the guilt of either man, pointing to their confessions, but added there’d been inappropriate mental health testimony during Smith’s trial. And after Ake v. Oklahoma later addressed psychological testimony at trial, he said Smith’s execution would have been disallowed.
Correll, the man Allen denied clemency to, had an IQ of 68, indicating “a significant limitation in intellectual functioning.”
“We did about everything we could do,” Snook said about his work. “The caselaw in Virginia had been very much pro-finality — ‘Execute him as soon as you can,’ kind of a thing.”
As work to review the breadth of Burton’s time at the state crime lab continues, Armbrust — the Mid-Atlantic Innocence Project’s executive director — said legislation focused on potentially problematic testimony and evidence could protect against future scenarios when this kind of process is necessary. But she also explained the importance of the current review.
“One of the questions that comes up when people are looking into something like Mary Jane Burton is, ‘But that was so many years ago, who really cares?’” Armbrust said. “It's really important for the credibility of Virginia's criminal legal system going forward that it grapples with sins of the past and tries to learn from those things.”
Travis Spencer, Timothy’s brother, said he has one desired outcome for the review, echoing a sentiment similar to Armbrust’s.
“I hope and wish for the outcome of this, is just to make sure they do it right and do their jobs 100% truthfully,” he said.