Noreen Malloy

Source: Pittsburgh Post-Gazette

From the time he was implicated in the 1988 murder of Noreen Malloy at a McDonald’s restaurant near Kennywood Park, Drew Whitley has professed his innocence. Now, he says, modern-day DNA analysis of hair found at the scene would prove it.

John Dolenc claims he didn’t kill his estranged wife near her Mt. Lebanon apartment in 1975. DNA tests of blood splatters found near her body could exonerate him, too, he says.

The Allegheny County district attorney’s office recently agreed to DNA tests in Mr. Whitley’s case after a protracted legal battle, but it continues to fight Mr. Dolenc’s request, which is now before the Pennsylvania Supreme Court.

These two cases are among 15 filed in Allegheny County under a 2002 law aimed at making it easier for people sentenced to life in prison or death to test their DNA against physical evidence, using techniques not available when their cases were tried. The law says all they have to do is to show a judge that DNA tests could prove their “actual innocence.”

But even though the law has produced one celebrated exoneration in Allegheny County and DNA tests have freed more than 160 wrongly convicted people across the country, these two cases show how difficult it remains for inmates to persuade prosecutors and judges to conduct DNA tests on past crimes in Pennsylvania. The difficulty hinges on whether a DNA test definitely “would” or just “could” prove innocence.

An investigation by the Pittsburgh Post-Gazette and the Innocence Institute of Point Park University found that forensic evidence was critical in the trials of both Mr. Whitley and Mr. Dolenc and that flaws in both trials raised additional questions about their convictions.

Two schools of thought

Thomas Doswell, of Homewood, was released in August after spending nearly 19 years in prison on a rape conviction. His case was crystal clear.

Semen had been collected from the victim, but DNA tests were not available when the crime was committed. After years of appeals, Mr. Doswell’s DNA was tested against the semen. They didn’t match, so he was freed.

The 2002 law mandates that judges authorize DNA testing of past crimes in cases such as Mr. Doswell’s, where tests obviously would be definitive. But what if a DNA test simply might prove definitive, or might raise only considerable doubt about a guilty verdict?

The state Supreme Court has been deliberating these questions in the Dolenc case since June.

One school of thought says DNA tests should be conducted even when there is a small chance they could prove innocence. The other school says that to avoid rearguing countless cases, tests should be ordered only when it’s almost certain they would prove definitive.

“If there’s a chance that it could prove someone innocent, why would the commonwealth contest it?” asks Pittsburgh lawyer Scott Coffey, who represents Mr. Whitley, Mr. Dolenc and another man who lost an appeal seeking post-conviction DNA testing.

From his perspective, prosecutors contest post-conviction DNA tests for many reasons, including the cost, up to $1,000 per sample.

From the perspective of the Allegheny County district attorney, the Doswell exoneration called for a more open mind in supporting some requests for post-conviction DNA testing, but not all. The distinction is clear in its different treatment of the Whitley and Dolenc cases.

In the case of Mr. Whitley, the district attorney eventually approved DNA testing of hairs found in the killer’s face mask and hat, which probably would prove whether Mr. Whitley committed the killing.

Mr. Dolenc wants to test 79 blood spatters, but even if his blood does not appear among them, it wouldn’t “prove actual innocence,” first assistant district attorney Christopher Connors said.

Mr. Dolenc argued that there was the possibility that someone else’s blood, besides that of his estranged wife, would show up, which would strongly suggest another killer.

Judges have been divided on the Dolenc case, as well.

Allegheny County Common Pleas Judge Donald Machen approved DNA testing, saying the jury might have decided differently if it had known exactly whose blood was found at the scene.

But Pennsylvania Superior Court reversed his order, agreeing with the district attorney that simply lacking evidence of Mr. Dolenc’s presence would not prove his “actual innocence.”

The case is now in the hands of the state Supreme Court.

In the meantime, Sen. Stewart Greenleaf, R-Montgomery, the main sponsor of the post-conviction DNA law, plans hearings early next year to see if amendments are needed. His goal, he said, is to make sure that every eligible prisoner can get access to DNA testing.

The murder of Noreen Malloy

The events that left a bright 22-year-old woman dead and Drew Whitley’s life forever changed began on a summer night in 1988 when Noreen Malloy and her late-night staff at the McDonald’s restaurant near Kennywood Park finished cleaning up at 2:45 a.m.

Ms. Malloy sent one employee to the parking lot to make sure it was safe for the others to leave. Jerome Wilson, who had worked at the restaurant for two days, was waiting outside the back door to start his 3 a.m. shift.

As the employees emerged from the building, a tall, black man wearing a beige trench coat, a dark nylon stocking mask and a felt hat darted from a stairwell holding a gun and shouting, “Don’t move!”

He grabbed Ms. Malloy by the neck, demanding the “money bag.”

“I don’t have a bag,” the frightened woman cried. The gunman fired into the air, causing the others to flee.

She pushed herself away and tried to get into her car. The gunman shot her in the back, grabbed her purse and fled through the vast Kennywood parking lot, leaving Ms. Malloy dead.

In the parking lot, police found the hat, the coat and the mask, all loaded with fragments of hair. They also found two .25-caliber shell casings, a tennis shoe footprint and two Newport cigarette butts.

None of the witnesses could identify the killer.

A suspect is identified

Police eventually found a witness in Mr. Wilson, the new employee, who had said an hour after Ms. Malloy’s killing that he had looked directly at the assailant from a distance of 3 feet but did not know who he was.

Twenty-six hours later, after repeated interrogations, Mr. Wilson named Drew Whitley as the killer, according to a police report. He said he recognized Mr. Whitley, who lived near him, from his long face, his voice and his pigeon-toed stride.

Mr. Whitley was known as a con artist, but few around his home in Monview Heights in West Mifflin considered him dangerous. He said he had never met Mr. Wilson.

The day of Ms. Malloy’s killing, Mr. Whitley was scheduled to appear for a preliminary hearing on a charge of theft by deception. He said he dropped his son off at his mother’s house that night and returned alone to his apartment.

Mr. Whitley was jailed the next day on a technical parole violation for not reporting the theft charge within 72 hours. He has been locked up since.

Mr. Wilson’s story contradicted so much evidence collected in the aftermath of the Malloy killing that police did not immediately file charges against Mr. Whitley, but they compared hair and fingerprints collected at the scene with those of Mr. Whitley. Nothing matched. DNA testing was not available at the time.

Six months later, Gary Starr, a double-murderer on death row, said Mr. Whitley had confessed to the Malloy killing in a conversation at the State Correctional Institution Pittsburgh.

Mr. Whitley said he had never met Mr. Starr, and penitentiary records show that Mr. Starr was isolated on death row and would not have had access to Mr. Whitley at the prison.

Within a year of Mr. Whitley’s trial, Mr. Starr’s death sentence was reduced to life in prison, although he had claimed prosecutors promised him nothing in return for his testimony. Mr. Starr has not responded to letters seeking comment on the Whitley case.

On the witness stand, Mr. Wilson was the only person at the scene of the crime to identify Mr. Whitley as Ms. Malloy’s killer.

But he was unable to keep straight whether the assailant held the gun in his right or left hand, whether his trench coat was long or short or whether he was wearing gloves. At one point, Mr. Wilson said the killer wore a straw hat, not a felt hat, and he mischaracterized its size.

Mr. Wilson could not say where Mr. Whitley lived in relation to him, or when he had last seen or spoken with him.

One piece of evidence which damaged Mr. Whitley’s case was a speck of blood found on one of his tennis shoes which was of the same type as Ms. Malloy’s. Mr. Whitley said the blood came from a cut his son had suffered the previous day, and it has never been tested further.

Trial and error

Dorothy Menges, then a criminalist with the Allegheny County Crime Lab, testified that hairs from the crime scene had “many, many overlapping characteristics” to those of Mr. Whitley, but under questioning from Judge Walter Little, she backed off:

“You can’t say hair came from Whitley?” the judge asked.

“No,” replied the crime lab manager. She also acknowledged that saliva from two Newport Light butts found at the scene did not match Mr. Whitley’s, nor did saliva taken from the killer’s stocking mask.

During closing arguments, Assistant District Attorney Nicholas Radoycis pointed to the hairs in the mask and hat as strong evidence of Mr. Whitley’s guilt. Mr. Whitley’s attorney told the jury that the hair evidence was obviously inconclusive and that no physical evidence linked Mr. Whitley to the crime.

Mr. Whitley was convicted of second-degree murder, which spared him the death sentence but condemned him to life behind bars.

“I know that you know in your heart that I did not commit this crime,” Mr. Whitley told Judge Little at his sentencing. “I am being railroaded. It is a nightmare. … I am poor and black, but I am not crazy.”

The DNA debate

DNA testing came into widespread use in the 1990s, and Mr. Whitley petitioned to have the evidence in his case checked against his DNA.

After a six-year fight, Judge Little granted DNA testing, but at that point, the Allegheny County police could find only two of the 41 hairs found in the stocking mask and elsewhere at the crime scene. Police officials said the rest of the evidence had been lost during a flood at its Wood Street headquarters in the mid-1990s.

The testing of the two hairs was deemed inconclusive.

Last year, county police found the missing hair samples and notified Mr. Whitley’s attorney, Mr. Coffey, who used the 2002 post-conviction DNA law to win a ruling to test the hair.

Prosecutors argued that the testimony of Mr. Wilson and Mr. Starr would have convicted Mr. Whitley without the hair evidence, but in the wake of the exoneration of Mr. Doswell, District Attorney Stephen A. Zappala Jr. decided not to contest the decision.

Mr. Whitley’s DNA is now scheduled for testing, but results are not expected for six months.

After the hearing on his request for DNA tests in September, Mr. Whitley said he was “very happy” with the ruling. And he repeated what he has said since the day he was charged: “I’m an innocent man.”

Source: Pittsburgh Post-Gazette

The Allegheny County district attorney’s office said yesterday it will not oppose DNA testing in a 1988 homicide case, signaling a change in policy that grew out of the recent exoneration of Homewood man on a wrongful rape conviction.

District Attorney Stephen A. Zappala Jr. said he changed his approach to the use of DNA testing after his experience with the exoneration of Thomas Doswell last month — a test his office initially fought to stop.

He said it prompted him to take a new look at a 2003 state law authorizing DNA testing for those convicted of major crimes.

It says a defendant has to persuade 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 examine every such case personally 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.

So when Common Pleas Judge Walter Little ordered DNA testing in the 1988 slaying of a 22-year-old McDonald’s restaurant manager, Zappala said that his office would not appeal the order. The ruling breathed new life in the case of Drew Whitley, who was sentenced to life in prison and who has been fighting for a decade for DNA testing to prove his 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.” He called the case “a nightmare,” and repeated what he has said since his imprisonment 17 years ago: “I’m an innocent man.”

The testing will be performed on 39 pieces of hair that were found at the crime scene.

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 were lost in a downtown flood.

After the hairs were found in 2004, Whitley argued they 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.

Added: December 27, 2005