James Thompson and his attorneys believe that an analysis of genetic material collected long ago from the body of Colleen Williar, 24, could clear Thompson's name. Prosecutors insist the correct man is in prison.
The state public defender's Innocence Project, which is representing Thompson, filed a post-conviction motion in July 2004 requesting the DNA testing. Judge Kaye Allison denied that motion in August, but she recently changed her mind, Thompson's attorneys and prosecutors said yesterday.
"We're gratified that after 17 months, and in the face of the state's opposition, that we are finally getting closer to having this evidence tested," said Michele Nethercott, head of the Innocence Project.
The new order, issued Nov. 17, came a week after Innocence Project attorneys, who take cases of what they believe to be wrongful convictions, said in an article in The Sun that their efforts to have old evidence analyzed have been met with staunch opposition in the city. Prosecutors opposed testing in Thompson's case and in a murder case where there were skin cells collected from the trigger of a gun.
Allison wrote in the November order that she originally denied Thompson's request because she was not convinced that DNA testing met the scientific standards required by the courts. She said she reconsidered the motion after learning more about the testing method and concluding that a DNA test could shed light on Thompson's guilt or innocence.
"A reasonable probability exists that the DNA analysis requested by the petitioner may be potentially exculpatory or mitigating," the judge wrote.
Thompson and a neighbor, James Owens, were convicted of raping and murdering Williar, who was stabbed, beaten and strangled in the upstairs bedroom of her O'Donnell Heights rowhouse.
Originally a witness in Owens' case, Thompson was testifying during the trial when police determined that Thompson must have also been at the scene of the crime.
Owens - and a few months later, Thompson - were convicted of rape and first-degree murder.
Even if the genetic material isn't Thompson's, prosecutors said yesterday, that doesn't mean he isn't guilty of murder. During Owens' trial, Thompson testified that he and Owens were together at the scene of the crime. Thompson later changed his story and said he wasn't there and had nothing to do with the crime.
In his motion opposing the defense request for DNA testing in the Thompson case, Assistant State's Attorney Mark P. Cohen cited Thompson's confession during Owens' trial and physical evidence such as a hair on Williar's body that an investigator testified was a "match" to Thompson as reasons the case should not be reopened.
Suzanne Drouet, a public defender representing Thompson, said she doesn't believe the sperm collected from Williar's body belongs to either Thompson or Owens. Drouet said that would prove someone else had committed the brutal rape and murder.
Because both men were convicted of rape, their DNA should be in a statewide database and be readily available for comparison purposes, Drouet said.
Post-conviction DNA testing drew a spotlight last month when a Baltimore judge ordered a new trial in a 20-year-old murder case because a DNA test had shown that sperm found in the victim's body did not match that of the man serving prison time for the murder.
Robert C. Griffin, now 71, is scheduled for a bail review hearing next week as he awaits a new trial on charges from the 1985 murder of Annie Cruse, whose body was left in .
The Innocence Project also filed a motion last month in a third case with possible DNA evidence. Donte Gregg was convicted in 2003 of first-degree murder in a shooting death. Skin cells that were swabbed from the murder weapon have never been tested for DNA, but Gregg's attorneys believe testing will prove that he wasn't the shooter.
The Innocence Project attorneys said they have faced more opposition in Baltimore than anywhere else. For example, in Baltimore County, prosecutors have agreed to try to handle post-conviction requests for DNA testing outside of the courtroom in order to speed up the process.
Genetic material - such as hair, skin cells, blood and sperm - collected at crime scenes is usually stored at local police departments or the state medical examiner's office. Prosecutors' consent or a court order is required before those agencies release the evidence for testing.
A spokeswoman for the Baltimore state's attorney's office said city prosecutors have a policy to wait for a judge to order DNA testing in post-conviction cases. "Otherwise that would allow hundreds, if not thousands, of cases to be opened," said spokeswoman Margaret T. Burns.
Although the public defenders were pleased that Allison ordered DNA testing, they said the language in her ruling is problematic. "Unfortunately the order imposes unrealistic constraints that will require us to seek its modification," Nethercott said.
For one, the amount of sperm on the slide that's available at the state medical examiner's office is likely too small to be divided into two portions, as Allison requested. Nethercott said the Innocence Project will try to resolve that and other issues with the judge and prosecutors.