LAWYERS: DNA TESTS SHOW DEATH-ROW INMATE INNOCENT

Saturday, July 9, 2005
Lawyers: DNA tests show death-row inmate innocent
Rex Penland was convicted in 1994


THE ASSOCIATED PRESS



CHARLOTTE

DNA evidence shows that convicted murderer Rex Penland is not guilty of killing a Winston-Salem prostitute, a crime for which he was sentenced to death, his attorneys said in court papers filed yesterday.

Penland, 44, has been on death row for more than 11 years after his conviction on charges of first-degree murder, rape, sexual offense and kidnapping in the Dec. 9, 1992, slaying of Vernice Alford.

"(The) DNA testing results dramatically change the picture presented by the prosecution at Penland's capital trial," wrote Ken Rose, an attorney at Durham's Center for Death Penalty Litigation, in a memorandum supporting a motion to overturn Penland's 1994 convictions.

The Stokes County prosecutor, James C. Yeatts III, declined to comment yesterday, saying he would reserve his comments for court.

The office of N.C. Attorney General Roy Cooper declined to comment on yesterday's filing, but said in an April filing that it does not view the DNA findings as favorable to Penland.

"Penland overstates the significance and extent of the LabCorp DNA analysis and results," the state said.
Judge John O. Craig of Superior Court is scheduled to hear arguments on the motion July 25 in Danbury.
Penland's twin nephews, Gary Sapp and Larry Sapp Jr., testified at his trial that they were with Penland when he picked up Alford, a waitress and prostitute in Winston-Salem, and drove her to a logging road in Stokes County, north of the city. There, they testified, he raped Alford and had them tie her to a tree, after which he stabbed her to death.

Penland testified that he was drunk and passed out in a truck and did not take part in the rape and murder.
In the memo, Rose said that DNA tests on the knife - which belonged to Penland and which the Sapps testified that he carried with him everywhere - show the only blood on it came from Rex Penland. Tests also showed Penland's semen was not present in a swab taken from Alford's corpse.

In its April filing, the state said that the presence of Penland's blood on the knife doesn't mean that the weapon wasn't used to kill Alford.

"It is possible that Penland successfully removed most, if not all of the blood or genetic material from the knife, the knife handle, and the knife case," the state said.

Other blood found on the knife's handle and case could not be tested and could have come from Alford, the state said.

As for the sperm tests, the state said that "there was no testimony by the Sapp brothers that Penland ever ejaculated into Ms. Alford's vagina" and that the absence of his sperm from the sample does not prove innocence.

During Penland's trial, prosecutors introduced semen found in Alford, but said that current technology did not allow it to be typed for DNA. A state forensic expert also testified that there wasn't enough blood on Penland's knife to test it for DNA.

The N.C. Supreme Court upheld Penland’s conviction and sentence in 1996.

Last year, after a defense motion in Stokes Superior Court, Judge A. Moses Massey ordered that the sperm and blood samples be newly tested in light of "advances in the science of DNA testing."

Under a 2001 state law passed to assist people wrongly convicted of crimes in clearing their names, a court may vacate a judgment, discharge the defendant, resentence the defendant, or grant a new trial if post-conviction DNA testing results are favorable to a defendant.

In an interview yesterday, Rose said he believes that the Sapp brothers - who were also charged with first-degree murder and rape - lied after prosecutors promised the pair favorable treatment. He said that both pleaded guilty to second-degree charges less than two weeks after Penland was sentenced to death. They each served less than five years in prison.