By: Bill Moushey
Director of the Innocence Institute at Point Park University
Eighteen years after Drew Whitley was imprisoned for life in the 1988 murder of a McDonald’s night manager, prosecutors are poised to ask a judge to free the former West Mifflin man after a second round of DNA tests indicated he was not responsible for the killing.
Yesterday, Allegheny County District Attorney Stephen A. Zappala Jr. asked a judge to vacate Mr. Whitley’s 2nd Degree murder conviction and grant him a new trial.
But in an interview, Mr. Zappala said he will ask that judge to dismiss charges at a hearing Monday because new test results of hairs found in the nylon mask worn by the man who shot Noreen Malloy after a botched early-morning robbery show they did not belong to Mr. Whitley.
“We have results back today… and it’s not Whitley,” Mr. Zappala said. “That raises a couple of possibilities, but the strongest is that there’s reasonable doubt as to Whitley’s responsibility for the death of Ms. Malloy,” he said. He said Ms. Malloy’s family was told about the action yesterday.
It was the second set of DNA tests on evidence from the case that excluded Mr. Whitley from the crime, and the second time that post-conviction DNA tests have cleared someone in Allegheny County.
Mr. Whitley was convicted in 1989 on physical evidence and the word of two controversial witnesses who said he was the killer. Yesterday, Mr. Zappala called the case “another example of how science has contradicted the testimony of witnesses.” He said he has not received reports on three additional hairs from the mask, but has been assured from a State College testing firm that the results will also exclude Mr. Whitley.
Scott Coffey, Mr. Whitley’s post-trial lawyer, said the two had a 20-minute telephone conversation yesterday afternoon from the State Correctional Institution at Greensburg. He said another inmate told Mr. Whitley about a radio report prior to his phone call, but he knew few details.
“He’s flying high. He’s overwhelmed and in shock,” said Mr. Coffey about the first DNA exoneration he has been part of.
Mr. Coffey said Mr. Whitley was packing his belongings to be transported to the Allegheny County Jail today(WEDNESDAY) to await the 1:30 p.m. Monday hearing before Allegheny County Common Pleas Judge Anthony Mariani, who is expected to grant the prosecutor’s motion for Mr. Whitley’s release.
Mr. Coffey was equally stunned by the turnaround. Just last week Mr. Zappala’s office filed a motion suggesting the prosecutor would oppose his request for a new trial based on the first round of DNA tests that excluded Mr. Whitley earlier this year.
For years, prosecutors had fought Mr. Whitley’s efforts to conduct DNA tests on more than 40 hairs that had been found in clothing worn by the man who beat and shot Ms. Malloy to death as she walked out of the McDonald’s restaurant near Kennywood Park when her shift ended around 3 a.m.
Last summer, after DNA testing exonerated convicted rapist Thomas Doswell of Homewood, Mr. Zappala said he would reconsider his interpretation of a 2003 state law that authorizes DNA tests for people convicted of major crimes.
The law says a defendant must persuade a judge DNA testing could prove actual innocence. Zappala said he previously felt that if a convict could not show that DNA testing would prove conclusive, his office would oppose it. Tests can cost up to $1,000 per specimen.
Mr. Zappala initially was reticent in agreeing to allow the evidence to be tested because two witnesses implicated the former West Mifflin man with a robbery record in the grisly killing.
Jerome Wilson, who was sitting outside the restaurant during the murder, initially told police he could not identify anyone, but eventually identified Mr. Whitley from voice and facial features he noticed through a nylon mask and hat, even though Mr. Whitley says he never met the man. The other was Gary Starr, a twice convicted murderer on death row who testified Mr. Whitley confessed the killing to him while both were in prison. After his testimony, prosecutors did not fight an appeal that reduced his sentence to life in prison.
In September, Common Pleas Judge Walter Little, who recently turned the case over to Judge Mariani because of ill health, breathed new life into Mr. Whitley’s appeals when he ordered DNA testing of the hairs found at the crime scene. After the hearing, Mr. Whitley told reporters what he has been saying all along: “I’m an innocent man.”
Post-Gazette staff writer Bill Moushey directs the Innocence Institute of Point Park University, a partnership with the Post-Gazette where students learn investigative reporting by researching and writing about allegations of wrongful convictions. The institute has investigated the Malloy-Whitley case for five years. Mr. Moushey can be reached at firstname.lastname@example.org or 412-765-3164.
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