Tessa Van Hart, a pizza delivery woman, was sodomized and murdered while making a delivery outside of Chincoteague, Virginia, on January 27, 1994.  In April 1997, Brian Lee Cherrix, then incarcerated, confessed to the murder.  At trial, Cherrix contended that this confession was fabricated.  In 1998, he was convicted of capital murder based upon the jury's finding of both vileness and future dangerousness. 

The Supreme Court of Virginia consolidated Cherrix's appeal with its proportionality review. The court summarily dismissed a number of Cherrix's claims and labeled its discussion of them as "Issues Previously Decided." These arguments were based upon the general constitutionality of the Virginia capital murder statutes. 

The court's discussion of Cherrix's Brady claim is noteworthy for its implications to defense counsel. Cherrix's grandmother testified as an alibi witness for him at trial. The Commonwealth introduced a written statement, signed by Cherrix's grandmother, containing essentially the same information as her trial testimony, albeit with a fifteen-minute time discrepancy. Presumably, the statement was offered to impeach Cherrix's grandmother. The defense objected to the admission of the statement since it contained exculpatory information that had not been disclosed by the Commonwealth, in violation of Brady v. Maryland. Cherrix argued on appeal that, despite the defense counsel's knowledge of the general exculpatory material contained in the statement, the admission of the statement demonstrated the Commonwealth's lack of good faith and violated the due process clause. The Supreme Court of Virginia rejected this argument, noting that the statement would not have been material exculpatory evidence, as required by Brady.  Presumably, this finding of "immateriality" was based upon defense counsel's knowledge of Cherrix's grandmother's availability as an alibi witness.

However, defense counsel's anticipated access to material held by the Commonwealth is irrelevant when evaluating a Brady claim. Thus, the Commonwealth's duty to disclose is in danger of becoming defense counsel's duty to discover. The Supreme Court of Virginia rejected all of Cherrix's claims and upheld his death sentence on February 26, 1999.

In January 2001, Federal District Court Judge Gerald Bruce Lee ordered the state to turn over seminal fluid taken from Van Hart’s body for further DNA testing.  The evidence was tested at the time of the crime, but more precise tests are available today.  The Fourth Circuit issued an emergency stay on February 5, 2001, blocking the order. In July of 2001, after hearing arguments from the Virginia Attorney General’s Office, the Fourth Circuit sided with the lower court and ordered that DNA testing be carried out.  The tests were once again inconclusive.

 Brian Lee Cherrix was executed by the Commonwealth of Virginia on March 18, 2004.