Wes Nance Hands Söring a Tactical Victory, "Small Town, Big Crime" Posts Their Petitions
STBC did all the preparation for reliable testing using new techniques. Why won't anyone let it happen?
As you might imagine, there’s a lot going on behind the scenes concerning DNA testing of the evidence in the Söring case. But some interesting documents have just emerged. Söring, for his part, has posted a long chain of emails he exchanged with Wes Nance, current Bedford County District Attorney. As part of their response to Söring’s claims, the “Small Town, Big Crime” (STBC) journalists have posted the petitions they filed to test the evidence in the Haysom murders.
Let’s have a preliminary look. As I said, there will be much more to come, but we can at least form some tentative conclusions.
Söring and Nance Trade Emails
In his public-facing writings and speaking, Söring has always been quiet about the prospect of new DNA testing on the evidence from the Haysom murders. I can’t find an interview in which he personally says that he wants new DNA testing; as far as I can tell, the response to the STBC podcast episodes is the first time he has done so. However, this issue is routinely raised by his supporters, for obvious reasons. Söring’s strategy has always been to rely on Wes Nance rejecting new DNA testing, so that Söring doesn’t have to be the one who looks like he’s standing in the way. So what we have is Söring’s supporters raising the issue, but silence from the man himself, as far as I can tell. If you can find a pre-2022 interview in which Jens Söring himself, in an interview or speech, says that he personally wants new DNA testing, please let me know!
So far, Wes Nance has obliged Söring. And that’s still his approach. Söring sent an email to Wes Nance on 7 July 2022 which began as follows:
A recent podcast misrepresented my views on DNA testing, and I am writing you to clarify my position.
I asked for DNA testing in 2017, and I again ask for DNA testing today.
In 2017, Albemarle County Sheriff J. E. “Chip” Harding and Charlottesville P.D. Detective Sergeant (ret.) Richard L. Hudson met with you at my request to ask for DNA testing. They offered to prepare evidence items for shipment to a lab. Also, Liberty University Professor J. Thomas McClintock offered to arrange the most advanced kind of genetic testing available.
At that time, you declined my request for DNA tests.
My position has not changed: I stand by my request of 2017, and I renew that request in this letter.
In the podcast you indicate that you have changed your position.
That makes me happy because — again — I am asking for DNA tests.
But if I understood your statements in the podcast correctly, you will not order DNA tests on your own initiative. You will only agree to testing if I file a “petition” first.
I find this confusing. Do you support DNA testing or not?
Nance responded, starting a long exchange of emails which Söring has posted on his website. Nance basically says that while he didn’t object to DNA testing, and informed the court of this, he didn’t believe it was appropriate to actually request it himself. Nance’s main points, as summarized by Söring, are (1) there’s no reliable “chain of custody” (i.e., detailed logbook explaining who has had access to the evidence, when, for what purpose, and how long) for many of the pieces of evidence; (2) the evidence is likely contaminated; and (3) if the test generated partial or ambiguous profiles, Söring’s lawyers would use that information to cast doubt on his conviction.
In his video, Söring eagerly adopts all three arguments, saying over and over that “Wes Nance is saying this, not me.” Söring says that Nance’s emails prove that Söring cannot file a petition for DNA testing, because Söring would have to affirm under oath, pursuant to Virginia Code § 19.2-327.1 that the evidence satisfied a certain set of conditions, including:
(ii) the evidence is subject to a chain of custody sufficient to establish that the evidence has not been altered, tampered with, or substituted in any way; (iii) the testing is materially relevant, noncumulative, and necessary and may prove the actual innocence of the convicted person….
So, Söring says, he cannot sign a petition for new DNA testing under this code, because — as Wes Nance has confirmed himself, personally — Söring cannot affirm under oath that conditions (ii) and (iii) are satisfied.
Söring’s argument is technically accurate! Now, of course, you might ask yourself the following question: How is someone who is in prison supposed to be able to swear and prove that the evidence used against him had a proper chain of custody and is not contaminated? Are they supposed to go to the prison warden and ask him for a pass to leave a maximum-security prison and travel to the police evidence locker to inspect the log-books and the evidence in their own trial?
American state legislators are often terrible writers of statutes, and that’s certainly the case here. The statute asks prisoners to affirm things under oath that they cannot possibly know. As a result, how things usually operate is that the prisoner instructs his lawyer to make inquiries about the evidence. The lawyer then contacts the police or sheriffs’ office, makes the relevant inquiries, determines which pieces of evidence are likely to produce results, and approaches the prosecution with a plan for testing. Either the prosecution or the prisoner can then file the petition — often both of them do so. The prisoner simply affirms that uncontaminated, reliable evidence still exists, because that’s what his lawyer told him and that’s what he needs to say to get testing.
There’s even a well-established legal phrase that is used for exactly these situations: i.e., in situations where you do not yet have access to all the evidence (because the Court hasn’t granted you access yet, or the opponent refuses to confirm something), but you believe the evidence could show something. The phrase is called “upon information and belief”. Here’s a definition from Cornell Law School’s website:
“Information and Belief” is a phrase that is normally used in legal pleadings such as complaints and answers during a lawsuit. It is also sometimes used during affidavits under oath, declarations under penalty of perjury. In these instances, the individual stating the phrase or statement qualifies it. Thus, what the individual is really stating is "I am only stating what I have been told, and I believe it." The purpose of this phrase is to show which statements the individual is sure about and distinguish from statements that the individual is unsure about or lacks personal knowledge (such as if it’s hearsay). The point of stating this phrase is to protect the individual making the statement from claims of perjury or outright falsehood. The typical phrasing of “information and belief” is: "Plaintiff is informed and believes, and upon such information and belief, alleges that defendant diverted the funds to his own use."
So this is how you, as a prisoner, would apply for new DNA testing — you would say that, “upon information and belief”, you believe there is some evidence in your case, somewhere, which is testable using modern methods and which could exonerate you.
So yes, on the surface, Söring’s argument is technically valid, but in the real world, there is an established, well-accepted way to ask for testing while eliminating the possibility of prosecution for perjury. (As I recently learned, there’s a German equivalent of this phrase, too: You say “We expect that the other side will not contest this assertion.”) Söring cannot possibly know that every piece of evidence in his case is contaminated or has no chain of custody.
Yet Wes Nance has supplied Söring with another argument for not conducting any DNA testing in the Haysom murders. Söring can simply say: “It doesn’t matter whether I sign the petition or not, because Wes Nance has himself declared that he will not sign it, and he has also said that there is no point in further DNA testing.” I’m not sure this was Nance’s intention, but it is the practical outcome, and it is what Söring says in his video, over and over. Nance has therefore, perhaps unwittingly, provided Söring with all the cover he needs to claim that he would love to get the DNA tested if it could prove anything, but alas, it cannot.
STBC did the Preparation
Above, I noted that usually what happens in these cases is that the prisoner asks his lawyers to actively prepare the case for DNA testing. He will ask them to contact the Sheriff’s Office, file a motion to inspect the evidence and the logbooks, and, working with a scientist, inspect pieces of evidence looking for those which may yield results. The prisoner’s lawyer will then contact his own DNA expert and get an affidavit stating that testing can be performed. The prisoner’s lawyer will then negotiation with the District Attorney over which pieces of DNA will be tested, how they will be processed, and which lab will do the testing. Söring’s own lawyers, as far as I can tell, never did any of this. Söring says that two of his supporters informally asked Nance to agree to testing, and may have mentioned new DNA testing offhand in one of his legal pleadings. But he’s shown no proof that anyone on his side genuinely tried to lay the groundwork for testing by taking the above steps.
But actually all of the necessary preparation was done! Not by Söring’s own lawyers, but by “Small Town, Big Crime”. Before discussing this, though, I should clarify something. Söring says in his video that the journalists behind the STBC crew think he’s guilty. I have spoken to the STBC crew a few times, and can say from my own personal experience that none of them has ever expressed this sentiment to me. Just as in the public podcast, in their private comments as journalists they have never stated any conclusion as to whether Söring is guilty or not. I’ve explained why I think he’s guilty, but they have always simply listened carefully and asked questions, without stating any firm conclusion. Nor would I expect them to. They’re not on anyone’s “team”, mine included.
As I’ve noted before, Team Söring seems to think I have magical powers of “contaminating” anyone I talk to about the case, transforming them into a crusader for his guilty verdict. They seem to have cut off contact with STBC merely because STBC started asking some questions based on my and Terry Wright’s work. Although I’m flattered by Team Söring’s estimation of my persuasive powers, it’s too generous. Just as proper journalists shouldn’t listen to Söring and come away proclaiming his obvious innocence, they shouldn’t listen to a skeptic like me and come away proclaiming the opposite. They should ask questions, listen to the answers with an open mind, weigh argument against argument, and look for evidence to decide contested issues. That’s been the model of STBC from the beginning, as far as I can tell.
The STBC Petitions
On their Patreon page, STBC has now posted a brief notice, along with their two petitions for evidence testing and an Excel spreadsheet of all the evidence in the case.
Attached are copies of the two petitions filed by Courteney Stuart and Rachel Ryan in Bedford County on August 23, 2021 requesting new DNA testing on evidence in the the Haysom murders.
Petition #1 is for the evidence stored in the Bedford County evidence warehouse. Petition #2 is for the evidence stored with the Department of Forensic Science that was tested back in 2009 as part of the post-conviction DNA testing. It took us more than a year to create these petitions with the help of our attorney, Bruce Williamson, and Dr. James Anstead, the lab director of an FBI-accredited lab in Oklahoma that was recommended by Jens Soering's own DNA expert, Dr. Thomas McClintock.
A total of 25 evidence items were selected for examination and possible testing. Since the items are listed in the petitions solely by the evidence item # and corresponding exhibit #, we've also attached an excel sheet detailing what each item actually is.
And who was going to do the testing? DNASolutions. Here is what their Laboratory Director, Dr. James Anstead, said about the evidence in the Söring case:
I’m the Laboratory Director of DNA Solutions, one of a select few private labs in the United States with the combination of FBI QAS, AABB, and ISO/IEC 17025 accreditations including accreditation in Mitochondrial DNA testing. In addition, DNASolutions is permitted by New York State Department of Health for relationship testing and accredited by Texas Forensic Science Commission. DNA Solutions has provided accredited testing for over 20 years and I personally have more than 15 years of experience in DNA analysis. I am a published academic expert in population genetics and have worked in forensics for more than 8 years (see attached CV).
I have been retained by Rachel Ryan and Courteney Stuart, creators of the Small Town Big Crime podcast, to examine certain items of evidence from the Haysom crime scene and determine if useful information could be developed from additional DNA testing.
There have been a number of advances in DNA testing and analysis in the 12 years since the testing cited in the 2009 DFS report. We are now able to both collect DNA more effectively and analyze lower amounts than previously. New tools we have at our disposal include a micro vacuum device for collecting evidence that might have been previously missed, such as shed skin cells and kits with greater sensitivity, allowing us to develop more complete profiles from degraded or inhibited samples. With the advent of probabilistic genotyping we are also able to analyze complex mixtures that would have been unusable a few years ago.
Consideration for contamination DNASolutions understand that there is always a risk of contamination post-collection and that risk is perhaps higher for some items of evidence for this case. Before commencing testing, we will examine and document each piece of evidence including any evidence seals to determine when they were last handled and by whom. Where possible, we collect samples from areas of evidence that are less likely to have been touched or otherwise contaminated. Where mixtures are obtained we will perform appropriate statistical analysis to determine the likelihood of inclusion for any submitted individual profiles.
Selection of probative evidence items.
After reviewing court documents including evidence lists and certificates of analysis, several pieces of evidence have been identified that could yield DNA profiles suitable for comparison.
Before DNASolutions proceeds with any testing, we will both share the results of our examination with both the Petitioners and with Bedford County Commonwealth's Attorney Wes Nance and receive approval from both the Petitioners and Mr. Nance to proceed.
There’s much, much more on the STBC website. The STBC crew obviously poured enormous time and energy into creating a genuine opportunity for new testing which could answer some of the outstanding questions about the case — questions Jens Söring constantly raises in his interviews and YouTube videos.
If only either he or Wes Nance could be convinced to just do the testing and deal with the consequences. Since Söring will, in my opinion, never agree to any testing plan, it’s up to Nance. I understand Nance’s hesitation, but I think he might wish to reconsider. Let’s game this out:
If the DNA test shows Söring’s DNA at relevant areas of the crime scene, everything’s resolved. Söring will no doubt continue his campaign, pointing to the fact that he visited the Haysom home before the killings. But nobody will believe him.
If it’s completely inconclusive, we’re back where we started.
If it shows a profile of someone else who can be traced and has no alibi — or perhaps a hit in an existing DNA database of criminals — then Söring scores a major victory, and perhaps actually deserves an absolute pardon.
If it shows ambiguous partial or minor profiles, then Söring will seize on this to argue against his guilt. But he’s already seizing on minor inconsistencies and unanswered questions (the partial shoeprint, the sockprint, the hair on the sink, untraced fingerprints, etc.) to argue against his conviction. Now he might have 11 of these points to argue instead of 10. But the 10 he already has aren’t sufficient to raise serious doubts about his conviction, and neither will partial DNA results from some long-ago party guest or plumber or handyman.
So, in my view, Nance doesn’t really have anything to lose, and potentially has much to gain. Let’s hope he gives this question more consideration.
In any case, this issue is far from being decided. I’ll post updates as quickly as my schedule permits.