LOUISVILLE — DNA from multiple people has been found on evidence in a 1990 double slaying, but it has not been tested against a man on Kentucky's Death Row for the killings.
A hat used as evidence in the case of Thomas Clyde Bowling had DNA from three people and a jacket had DNA from two, according to preliminary tests described in court filings.
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Bowling, 54, was convicted of the murders of Eddie and Tina Earley outside their Lexington dry cleaning store, Early Bird Cleaners. Their young son survived the attack.
The DNA evidence has not been compared to a sample from Bowling because prosecutors have objected to the tests. Bowling's lawyers are asking Fayette Circuit Judge Kim Bunnell to vacate his conviction based on preliminary test results.
The test results were made public in court filings Monday and Tuesday in Fayette Circuit Court in Lexington.
Bowling's attorney, assistant public advocate David Barron, said the preliminary results are enough to throw Bowling's conviction in the case into question.
A witness identified the shooter as wearing the hat and jacket and prosecutors said at trial that both items were found near Bowling when he was arrested.
The presence of DNA from multiple people invalidates the prosecution's theory that Bowling was the only person involved in the killings and the testimony of the eyewitness who identified the hat and jacket, Barron said.
”If Bowling's DNA isn't on it, it definitely helps him,“ Barron said. ”Even if his DNA is on it, it still helps him.“
Fayette Commonwealth's Attorney Ray Larson said DNA testing in the case is useless because multiple people have probably handled the evidence in the 18 years since the murders.
”Even somebody that has breathed on it and saliva has dropped on it could produce that DNA,“ Larson said. ”They're just trying to throw something up against the wall and see what sticks.“
Bowling was originally scheduled for execution in November 2004 for the slayings. He has previously lost appeals claiming he is mentally retarded and that he is ineligible for execution because his mental age is below 18.
DNA testing was granted on the hat, jacket and other evidence taken from a car prosecutors say was used as a getaway vehicle.
Kentucky law allows condemned inmates to request genetic testing of evidence in cases that predate the use of DNA testing.
Another Death Row inmate, Brian Keith Moore, 49, has been granted a DNA test on evidence stemming from a 1979 murder. The results in his case are pending.
Kentucky's law is similar to statutes in 39 other states. It allows Death Row inmates to request DNA testing on evidence so 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. A third Kentucky Death Row inmate, Roger Epperson, convicted of the June 1985 slaying of Tammy Acker in Letcher County, has applied for DNA testing.
DNA tests were inconclusive in the case of Death Row inmate Victor D. Taylor, convicted of the September 1984 kidnapping, robbery and murder of two high school students in Louisville.
Kentucky has executed two inmates since the reinstatement of the death penalty in 1976.