Murder of Pocomoke woman in Chincoteague tests Virginia DNA rule

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After a man called the Famous Pizza and Sub Shop in Chincoteague on Jan. 27, 1994 to order a pizza, Tessa Van Hart left the restaurant at 7:45 p.m. to make the delivery.Van Hart, 23, didn’t know the address was for an unoccupied summer residence.Just after midnight, police found the body of the Pocomoke City, Md. woman in the back seat of her car parked behind a vacant house, a mile or so from where she was to deliver the pizza. She had been shot twice in the head and sodomized.Now, the case is at the center of a potentially precedent-setting argument over the jurisdiction of federal courts as island resident Brian Lee Cherrix tries to save himself from a death sentence and prove he is innocent of a crime to which police say he confessed.A DNA test on seminal fluid collected from the victim in 1994 showed only her DNA. But DNA testing technology has advanced since then to the point where it could be possible to learn the DNA of the seminal fluid donor.Last month, U.S. District Judge Gerald Bruce Lee approved a request from Cherrix’s lawyers for further DNA testing. The attorney general’s office appealed to the 4th U.S. Circuit Court of Appeals, which on Monday issued an emergency stay of Lee’s order.David Botkins, spokesman for Attorney General Mark L. Earley, said the office opposed the order on the grounds that a federal court does have the power to issue such an order.Cherrix’s lawyers have until March 2 to respond to the stay. They had argued that they had to go to federal court because no appropriate course is available in Virginia courts.A prisoner in Virginia cannot be granted a new trial based on actual innocence if that evidence is discovered more than 21 days after sentencing.Lee’s ruling was made as an effort is under way in the General Assembly to allow such post-trial testing to be used in state courts. It also came less than three months after DNA testing showed that former death row inmate Earl Washington Jr. did not commit the murder for which he was condemned.The Chincoteague slaying went unsolved for more than three years.In June 1996, Cherrix was in jail on unrelated charges when authorities said he offered to trade information about the murder for leniency.He told authorities several times that a cousin, who died in a car crash in 1995, had told him about the crime in detail. Then, on April 25, 1997, police said Cherrix confessed to the slaying.Cherrix, 27, was convicted of forcible sodomy, a firearms charge and capital murder and was sentenced to death in 1998.Cherrix told The Richmond Times-Dispatch in a telephone interview from death row last week that he did not kill Van Hart. He said he he told police he had done it “so they’d leave me alone.”He said his cousin had been drunk when he told him details of the slaying. “He didn’t say he did it,” Cherrix said of his cousin. “He knew about it.”Van Hart’s mother, Ida Ward of Pocomoke City, Md., said she does not think Cherrix deserves another DNA test.Van Hart’s widower, Walter Van Hart, however, said he’s not worried about the DNA test.“He got convicted on his confession. To me, this is his last hope,” but it is a false hope, Van Hart said.