KY- Death row inmate challenges Ky.'s DNA testing law

6-5-2009 Kentucky:

LOUISVILLE, Ky. — A death row inmate has challenged Kentucky's DNA testing law, asking the state's high court to either overturn his conviction or allow for more detailed analysis of the evidence by the state or an outside lab.

Brian Keith Moore made the request Wednesday in an appeal to the Kentucky Supreme Court. A judge last year declined to overturn his conviction and sentence in a 1979 murder in which DNA testing was recently completed and did not definitively exclude Moore's DNA from the evidence.

The appeal presents the Kentucky Supreme Court with it's first opportunity to define how far a death row inmate can go in challenging his conviction through DNA testing.

Moore, 51, was convicted of kidnapping and shooting Virgil Harris of Louisville based in part on soil found on shoes and pants that prosecutors say the killer wore and matched dirt where Harris' body was found. He became the first Kentucky death row inmate to be granted DNA testing on evidence from a murder predating the science allowing the tests.

"This is not some theoretical or academic issue," said one of Moore's attorneys, public defender David Barron.

Prosecutors have 60 days to respond to Moore's brief. Shelley Johnson, a spokeswoman for Kentucky Attorney General Jack Conway, declined comment Thursday.

Kentucky's law allows death row inmates whose conviction predates the common use of the science to request DNA testing on evidence where the evidence is available. But, the law does not spell out whether state should be required to conduct more specific tests when the results are inconclusive or if evidence may be released for outside testing.

Moore's appeal focuses primarily on four points, while trying to raise enough doubts to halt the execution of the second-longest serving inmate currently on Kentucky's death row. Moore is not currently facing an execution date, but his direct appeals have ended.

Moore's attorneys want the Kentucky Supreme Court to either vacate his conviction or order a new trial based on DNA tests that showed someone else's genetic material on the clothes prosecutors say was worn by the killer. The tests didn't exclude Moore, but showed that more than one person contributed the DNA found.

If the court won't overturn the conviction, Moore's attorneys have asked for additional testing, either by the state or allowing defense attorneys to pay for an outside lab in an effort to see who's DNA is on the clothing.

Moore's attorneys say their client is potentially innocent and call the case a "real life who-done-it." They say another man, now deceased, actually killed Harris, then framed Moore for the crimes, but confessed to at least 10 people before he died. They say the DNA on the clothes points to that alternate suspect.

To date, six Kentucky inmates, including Moore, have requested DNA tests, although none of the testing has resulted in a conviction being overturned.

Sixteen people have been freed from death row across the country because of DNA evidence. The Innocence Project, a non-profit group that tries to use DNA evidence to exonerate people, said Nicholas Yarris of Pennsylvania served the longest on death row before being exonerated. Yarris was convicted in 1982 of beating, raping and killing a woman a year earlier near Chichester, Pa.

In granting the DNA tests, Jefferson Circuit Judge James Shake has said there was a "reasonable probability" that Moore wouldn't have been tried or convicted if DNA tests had been available at the time and had shown he didn't wear the clothes. Shake ordered testing on the shoes, pants and three other items. ..Source.. by BRETT BARROUQUERE