Posted on Thu, Dec. 28, 2006

Despite winning DNA test, death row inmate has long battle ahead

BRETT BARROUQUERE
Associated Press

LOUISVILLE, Ky. - Brian Keith Moore won a significant legal fight in an effort to get off Kentucky's Death Row when the state Supreme Court cleared the way for DNA testing of evidence.

But Moore, awaiting execution for the 1979 slaying of Virgil Harris in Louisville, has a long road ahead, regardless of what the results of a DNA test are, said attorneys involved in the case and former inmates who have been exonerated by the tests.

"It's a long road," said William Gregory, a Louisville man who fought for seven years to get DNA testing before he was released from prison for a rape he didn't commit.

It can take from two to 10 years or more from the time a DNA test is granted for old evidence for a case to be decided and, if warranted, a prisoner to be released, according to the Innocence Project, a nonprofit organization that aids inmates in securing DNA tests.

Moore won the right to DNA testing of clothes prosecutors say were worn when Harris was killed. The Kentucky Supreme Court on Dec. 21 dismissed prosecutors' challenge to Moore's request for testing. Unless the Supreme Court decides to reconsider the unanimous ruling, the evidence will go to the state police crime lab for testing.

Depending on how much the lab has to process, the test results could take some time, said David Barron, Moore's public defender.

"It depends on a lot of factors, including the testing that is conducted and any backlog at the DNA lab," Barron said.

And, even if the DNA tests come back without Moore's DNA on them, it's far from a sure thing that he'll get a new trial or sentencing hearing, or be released from prison.

"It shouldn't mean that, no," said Assistant Attorney General David Smith, who is handling the case.

Moore claims the clothes entered as evidence don't fit him, were given to police by an alternate suspect and won't have his DNA on them. If testing fails to find Moore's DNA on the clothes, it will result in the case landing before Jefferson Circuit Judge James Shake to decide if Moore gets a new sentencing hearing, trial or is released from prison.

"Almost guaranteedly, one of the sides will appeal that decision," Barron said.

And, Smith said prosecutors will fight any effort by Moore to get off of death row, saying there's ample evidence he is guilty of the slaying.

"The evidence in this case has been handled by a multitude of people over 27 years," Smith said. "The DNA evidence would be unreliable at this late date."

That approach by prosecutors could mean a long wait, said Walter D. Smith, who served 11 years in prison in Ohio before DNA tests cleared him of a rape in 1996. Walter Smith lost nine attempts over eight years to have DNA evidence tested over the objections of prosecutors.

"It's not going to happen quickly," said Smith, now a professional speaker.

Gregory offered similar advice.

"You've just got to keep going," Gregory said.

http://www.kentucky.com/mld/kentucky/news/16333050.htm