A defense team that includes a DNA expert from O. J. Simpson's "dream team" is working out an arrangement with Anne Arundel County prosecutors to retest saliva from a 1992 murder.
Last week, Circuit Judge Michael E. Loney erased the murder conviction and ordered a new trial for handyman Albert Givens, who is serving life without parole, in the bludgeoning and fatal stabbing of Marlene Kilpatrick of Arnold.
Loney skewered Givens' defense counsel, writing that defense errors were so crucial and baffling that they resulted in Givens' unfair conviction.
While prosecutors hope to appeal -- they must persuade the attorney general's office to ask the Court of Special Appeals for permission to appeal -- they are working with public defenders and Simpson lawyer Barry C. Scheck to retest evidence that was used to place Givens at the victim's home. While Loney authorized testing other evidence, the arrangement applies only to the saliva.
At Givens' trial, tests of genetic material wiped from a half-full Coke bottle ruled out 16 other suspects. The testing showed that Givens was included in the 1.9 percent of the population whose DNA has the same characteristics as those from the bottle.
His trial was the first in a Maryland court to use that type of DNA testing, and it has been supplanted by a more discriminating test.
"We don't mind retesting," said State's Attorney Frank R. Weathersbee. "Certainly if we are going to retry him, we are going to have to retest anyway."
Scheck is a co-founder of the Innocence Project at Benjamin N. Cardozo Law School in New York, where he teaches. Givens wrote there in 1995.
Since the program started in 1992, it has helped free 35 wrongly convicted people.
A jury convicted Givens, now 44, of Annapolis, of the Jan. 2, 1992, murder of Kilpatrick, a 55-year-old woman who had hired Givens, an alcoholic, to do some chores for her.
Prosecutors linked a wrench in Givens' toolbox to the crime, a witness saw Givens near the victim's stolen car hours after the slaying, his first alibi was wrong and the second was not convincing. Then he changed his story about when he last saw Kilpatrick. A county judicial panel and an appellate panel upheld his conviction before his post-conviction complaints came before Loney.
Loney said defense lawyer Paul M. Kirby fell short in several ways, and he faulted co-counsel Timothy D. Murnane for not taking part in the trial. Kirby was unavailable to comment, and Murnane did not respond to telephone calls.
The defense, Loney said, failed to ask for a delay because Murnane was the defense lawyer in a high-profile drug case taking place during Givens' trial.
The defense also failed to bring to the jury experts or their reports that could have helped Givens. A Maryland State Police expert did not match hairs from the victim's home or car to Givens, the county police crime lab did not confirm that material on the wrench was blood and the FBI crime lab could not conclude that Givens' wrench was the murder weapon.
Pub Date: 2/17/99