New DNA tests not always help in older cases

Judi Villa
The Arizona Republic
Nov. 27, 2004 12:00 AM

Bobby Tankersley has spent the past decade on death
row, convicted of raping and strangling an elderly
neighbor.

Convicted on scant physical evidence and now
discredited testimony from a bite-mark expert,
Tankersley is hinging his hopes for freedom on the
same type of post-conviction DNA testing that has
exonerated 153 inmates across the country, including
two in Arizona.

But the tests are not a panacea for all inmates,
particularly if samples have degraded over time, were
destroyed or are so small that conclusive results are
elusive. In some cases, like Tankersley's, DNA tests
don't clearly implicate a suspect but also don't match
someone else to the sample, leaving the results open
to interpretation.

"I'm not guilty," Tankersley, 52, said in a recent
phone call from the Arizona State Prison
Complex-Eyman. "I was hoping the truth would come
out."

Since the country's first DNA exoneration in 1989,
more and more inmates such as Tankersley are
attempting to overturn their sentences with genetic
tests that weren't available when they were convicted.

The resulting high-profile exonerations have created
an awareness of systemic problems, including faulty
eyewitness testimony, ineffective counsel and false
confessions that have put the innocent behind bars
across the country.

Even when DNA results aren't clear-cut, they can cast
enough doubt on convictions to force new trials.

"Unless you can show that it matches someone else,
then you have this sort of uncomfortable ambiguity,"
said Phoenix attorney Larry Hammond, head of the
Arizona Justice Project.

When that last happened in Arizona in 2002, a
death-row inmate sentenced for killing two people in
1991 was granted a new trial. After DNA tests showed
the victims' blood was not on David Hyde's clothing or
belongings, Hyde was allowed to plead guilty to
second-degree murder. He was sentenced to time served
and walked free in August.

Tankersley is the only Arizona death-row inmate with a
pending appeal based on post-conviction DNA testing.
He was condemned for the 1991 murder of Thelma Younkin
in her Yuma motel room. Younkin, 65, was raped and
then strangled with her oxygen tubing. The killer bit
her face and breasts, leaving DNA, the unique genetic
fingerprint that each of us carries in our cells.

But in some cases, like this one, DNA testing leaves
the question of guilt or innocence virtually
unanswered.

Consider:

• Tankersley's DNA wasn't found on the oxygen tubing
used to strangle Younkin. It also wasn't found
underneath her fingernails.

• Components of his DNA were detected 60 times at 78
sites tested, but at some of those sites the amount of
DNA was considered to be too low to interpret. Some
samples, taken from bite marks on the victim's
breasts, seem to indicate the presence of a third
person. Assuming, as has always been suggested, that
there was only one killer, Tankersley would have to be
excluded. But the state says there's a possibility the
sample was contaminated.

• A mixture from a bite mark on the victim's face was
1.2 billion times more likely to be from the victim
and Tankersley than from the victim and an unknown
Caucasian male, according to the state's attorneys.
But defense attorneys argue that Tankersley must be
excluded because his DNA was not found at two sites
tested from another face swab.

• A hair stuck in the victim's fecal matter that was
smeared on the bathroom sink could have come from
Tankersley. But his defense attorneys say that
Tankersley knew the victim and that she had ridden in
his car so it wouldn't be unthinkable that the hair
transferred to her apartment innocently.

Tankersley was convicted largely on the hair, which
could have belonged to 4 percent of the Caucasian
population, and the testimony of a forensic dentist,
who claimed his teeth matched the bites on Younkin's
body. The dentist also helped convict Ray Krone, who
was exonerated in 2002 when DNA tests pointed to
another man. After Krone was freed, the state Attorney
General's Office requested additional DNA analysis in
Tankersley's case.

Tankersley's attorney, Jennifer Sparks, said the tests
now raise "a strong doubt" about Tankersley's guilt
and should exonerate him.

"Can we let someone be executed based on a sliver of
evidence when there's a whole lot more evidence that
the state didn't get the right person?" Sparks said.

Assistant Attorney General Kent Cattani said the state
wouldn't stand in the way of freeing an innocent man,
but this time DNA testing was inconclusive and "does
not exclude" Tankersley at all.

"The evidence we've seen thus far . . . doesn't
suggest to me that he's innocent," Cattani said.

A judge will decide whether the new DNA evidence is
compelling enough to grant Tankersley a new trial. A
hearing begins Monday in Yuma.

Post-conviction DNA testing has served as a catalyst
in a national push to expose wrongful convictions and
given inmates their best hope for freedom.

"Thank God for the DNA," Hammond said. "DNA has
removed the question of whether we have wrongfully
convicted people. . . . DNA testing in Arizona costs
about $1,000 a sample and is paid for by the state.

In October, President Bush signed the Justice for All
Act, which allocates $25 million to post-conviction
DNA testing.

Although Tankersley suffered alcoholic blackouts at
the time of the murder and doesn't remember anything
of the night in question, he said he is "positive" he
didn't do it.

He's hoping for a new trial and then an exoneration.

"I just want all this to go away," Tankersley said. "I
just have to believe it's going to work out right."
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