By BRETT BARROUQUERE
Associated Press Writer
LOUISVILLE, Ky. (AP) - Two pieces of crucial evidence wanted for DNA testing by a Kentucky Death Row inmate are missing.
A pair of black pants and black corrective shoes that prosecutors say place Brian Keith Moore at the scene of a 1979 murder in Louisville cannot be located.
In response, Moore's attorney has asked Jefferson Circuit Judge James Shake to set aside the conviction and death sentence if prosecutors don't find the items.
"In light of this, the risk that Moore is innocent currently exists and will continue to remain," public defender David Barron said.
A hearing on the matter was scheduled for Thursday morning.
Four pieces of clothing, including a shirt and black jacket, were supposed to be taken to the crime lab for testing in May, but employees only found the pants and shoes.
DNA evidence from the shirt and jacket could cast doubt on Moore's conviction, but the loss of the shoes and pants could prevent him from proving his innocence, Barron said.
The Attorney General's office listed the shoes and pants as available for testing in an inventory submitted to a judge in May 2006. Corey Bellamy, a spokesman for the Kentucky Attorney General, which is handling the case, declined to comment.
Prosecutors across the country frequently report problems finding evidence from old cases for DNA testing, said Vanessa Potkin, a staff attorney with The Innocence Project in New York, a group that aids inmates in getting DNA testing.
Old evidence was found after multiple searches in recent cases in Virginia, New Jersey and New York, Potkin said. In the New York case, Alan Newton waited 11 years for a rape kit to be located and was released in 2006 after serving 21 years of a 40-year sentence.
Maryland's highest court last week ordered prosecutors to keep searching for evidence that could be tested in a 33-year-old
"Evidence just doesn't disappear," Potkin said. "You really need to be diligent. In this case, the significance could be life or death."
Moore, 49, was condemned to death for kidnapping and killing Virgil Harris, a Louisville man who was on his way to his 77th birthday party.
Moore is the first Kentucky Death Row inmate win DNA testing on evidence stemming from a crime predating such tests. At least three
other Death Row inmates have petitioned for testing.
Kentucky's law is similar to statutes in 39 other states. It allows Death Row inmates to request DNA testing on evidence as long as there haven't been previous tests and they can convince a judge that the evidence would have affected the outcome of their trial.
Similar tests have resulted in more than a dozen people around the country being freed from death row.
Moore has claimed he was set up by another suspect in the killing, who turned in Moore to reduce a pending sentence in another case. That person has since died.
Shake found that the evidence in the case - the clothes, Moore's fingerprints on several items belonging to the victim and Moore driving Harris' car - could be consistent with Moore's claim. Shake ruled that Moore made a compelling enough case to warrant DNA testing.
If the DNA on the clothes doesn't match Moore, the rest of the evidence against him is weak and suspect, Barron said. The pants in question don't - and have never - fit Moore, who weighs about 350 pounds, and nearly all the evidence can also be tied to the other suspect, Barron said.
Kentucky has executed two inmates since the reinstatement of the death penalty in 1976. Harold McQueen of Madison County was put to
death in the electric chair in 1997, and Eddie Lee Harper of Louisville became the only inmate to be executed by lethal injection in 1999.
(Copyright 2007 by The Associated Press. All Rights Reserved.)