innocence blog

A Web log for the Innocence Institute of Point Park University

Wednesday, September 21, 2005

Drew Whitley granted DNA test

September 21st, 2005


A decade after a West Mifflin man began a fight for DNA testing to prove his innocence in the early-morning slaying of a 22-year-old McDonald’s manager in 1988, an Allegheny County Common Pleas Judge has ordered 39 pieces of hair found in a nylon mask used in the crime to be examined.

The ruling by Judge Walter Little not only breathed new life into the case that has caused Drew Whitley to be imprisoned for life, but signaled a shift in policy by the Allegheny County District Attorney who has fought against that test - as well as several others -- on grounds that an exclusion from DNA evidence does not always prove innocence.

After the hearing, Whitley, who has long claimed testing will prove he is not the man who waited outside a McDonald’s near Kennywood Park to rob, then murder Noreen Malloy said he was “very happy” with the ruling in the case that he called “a nightmare,” repeating what he has said since his imprisonment 17 years ago: “I’m an innocent man.”

Yesterday, despite a decade of legal efforts by the office to prevent the test in Whitley’s case, District Attorney Stephen Zappala said he would not appeal the ruling.

While his office and that of his predecessor have in the past fought requests for DNA testing all the way to the Pennsylvania Supreme Court, yesterday Zappala said he changed his approach after his experience with the exoneration of Thomas Doswell last month – a test his office also initially fought to stop.

He said he took a new look at a 2003 state law authorizing DNA testing for those convicted of major crimes. It says a defendant has to convince a judge that DNA testing will prove actual innocence. Zappala said he previously felt if a convict could not prove that DNA was the only element that caused a conviction, his office would oppose the testing, which can cost up to $1,000 per specimen.

After Doswell was released from 19 years in prison for a rape conviction when DNA testing proved his innocence, Zappala said he began to personally examine every such case with the new belief that if a judge rules the testing should be done, he will not fight it.

“Let’s see what we’ve got. If there is any possibility this guy didn’t do it, let’s check it,” said Zappala.

During the protracted legal battle in the Whitley case, two hair samples were destroyed and deemed scientifically inconclusive in determining if they were Whitley’s. Then prosecutors claimed for a time that the rest of the DNA samples from the nylon mask were lost in a downtown flood.

After they were found in 2004, Whitley, a small time, petty criminal before the murder charge, argued the hair should be tested because during his 1989 trial the district attorney’s office offered testimony from experts – who did not have the benefit of DNA testing -- who said the hair found in the mask worn by Malloy’s assailant closely resembled Whitley’s.

“That was the strongest evidence in the case,” said Scott Coffey, Whitley’s appellate lawyer.

Prosecutors also believe even if the hair does not match Whitley, a jury would convict him again because two independent witnesses implicated him in the crime. One of them repeatedly denied seeing Whitley at the murder scene, then changed his story. The other is a two time convicted murderer who escaped a death sentence after testifying Whitley confessed to him in prison. Whitley claims he never met either of the witnesses.

Yesterday, Coffey suggested the witness testimony was faulty and that a coat and hat worn by the assailant did not fit Whitley, causing the hair evidence to be extremely important.

“If these hairs are found not to be his, I believe he will be proven innocent,” Coffey said.

Post-Gazette Staff Writer Bill Moushey also is Director of the Innocence Institute of Point Park University. It teaches investigative reporting by researching and writing about allegations of wrongful convictions. He can be reached at Bmoushey@pointpark.edu or 412-392-3416.

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